00664-Hepting Excerpts of Record

PUBLIC UNCLASSIFIED EXCERPTS OF RECORD
No. 06-17137
IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT
TASH HEPTING, et al., Plaintiffs - Appellees,
v.
AT&T CORP., et al., Defendants, and
UNITED STATES OF AMERICA, Intervenor - Appellant.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA
EXCERPTS OF RECORD
PAUL D. CLEMENT PETER D. KEISLER

Solicitor General Assistant Attorney General
GREGORY G. GARRE DOUGLAS N. LETTER

Deputy Solicitor General THOMAS M. BONDY
ANTHONY A. YANG
DARYL JOSEFFER Attorneys, Appellate Staff
Assistant to the Solicitor Civil Division, Room 7513
General U.S. Department of Justice
950 Pennsylvania Ave., N.W.
Washington, D.C. 20530
Telephone: (202) 514-3602
TABLE OF CONTENTS
Docket
No. Pages
8 Amended Complaint, filed Feb. 22, 2006 . . . . . . . . . . . . . . . . . . . . . . . . 1-32
87 AT&T’s Request for Judicial Notice, filed Apr. 28, 2006

[OMITTED]
– Ex. J: Press Briefing by Attorney General Alberto Gonzales

and General Michael Hayden (Dec. 19, 2005) . . . . . . . . . . . 46-53
124 United States’ Motion to Dismiss or, in the Alternative, for

Summary Judgment, filed May 13, 2006 [OMITTED]
– Att. 1: Declaration of John D. Negroponte, Director of

National Intelligence (May 12, 2006) . . . . . . . . . . . . . . . . . . 54-60
– Att. 2: Declaration of Lt. General Keith B. Alexander,

Director, National Security Agency (May 12, 2006) . . . . . . 60-65
308 District Court Opinion, filed July 20, 2006 . . . . . . . . . . . . . . . . . . . 236-307
— Hepting v. AT&T Corp., 439 F. Supp. 2d 974 (N.D. Cal. 2006) . . . . 308-39
— Ninth Circuit Order Granting Permission to Appeal, filed

Nov. 7, 2006 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 340
127 Notice of Attorney General’s Letter to Congress, filed Jan. 17,

2007 [OMITTED]
– Att.: Letter from Attorney General Alberto Gonzales to

Senators Leahy and Specter (Jan. 17, 2007) . . . . . . . . . . . . 341-42
175 Notice of Filing of Public Declaration of Lt. General Keith B.

Alexander, filed Feb. 22, 2007 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 343-45
– Ex. 1: Declaration of Lt. General Keith B. Alexander,

Director, National Security Agency (Jan. 24, 2007) . . . . . . 346-50
-i-
175 Notice of Filing of Public Declaration of Lt. General Keith B.
Alexander, filed Feb. 22, 2007 (continued)
– Ex. 2: Unclassified Paragraph from Classified Declaration . . . . . . . . 351
— Docket Entries in Hepting v. AT&T, No. 06-cv-672 (N.D. Cal.) . . . . 352-97
— Docket Entries in In re NSA Telecommunications Records

Litigation, No. M:06-cv-1791 (N.D. Cal.) (includes Hepting) . . . . 398-417
- ii -
Case 3:06-cv-00672-VRW Document 8 Filed 02/22/2006 Page 1 of 33
1 ELECTRONIC FRONTIER FOUNDATION

CINDY COHN (145997)
2 cindy@eff.org
LEE TIEN (148216)
3 tien@eff.org
KURT OPSAHL (191303)
4 kurt@eff.org
KEVIN S. BANKSTON (217026)
5 bankston@eff.org TRABER & VOORHEES
CORYNNE MCSHERRY (221504) BERT VOORHEES (137623)
6 corynne@eff.org bv@tvlegal.com
JAMES S. TYRE (083117) THERESA M. TRABER (116305)
7 jstyre@eff.org tmt@tvlegal.com
454 Shotwell Street 128 North Fair Oaks Avenue, Suite 204
8 San Francisco, CA 94110 Pasadena, CA 91103
Telephone: 415/436-9333 Telephone: 626/585-9611
9 415/436-9993 (fax) 626/ 577-7079 (fax)
10 Attorneys for Plaintiffs
11 [Additional counsel appear on signature page.]
12
UNITED STATES DISTRICT COURT
13
NORTHERN DISTRICT OF CALIFORNIA
14
15 TASH HEPTING, GREGORY HICKS, ) No. C-06-0672-JCS

CAROLYN JEWEL and ERIK KNUTZEN on )
16 Behalf of Themselves and All Others Similarly ) CLASS ACTION
Situated, )
17 ) AMENDED COMPLAINT FOR DAMAGES,
Plaintiffs, ) DECLARATORY AND INJUNCTIVE
18 ) RELIEF
vs. )
19 )
AT&T CORP., AT&T INC. and DOES 1-20, )
20 inclusive, )
)
21 Defendants. ) DEMAND FOR JURY TRIAL
)
22
23
24
25
26
27
28
- ER 1 -
1 1. Plaintiffs, by and through their attorneys, bring this action on behalf of themselves
2 and all others similarly situated, and allege upon personal knowledge and belief as to their own acts,
3
and upon information and belief (based on the investigation of counsel) as to all other matters, as to
4
which allegations Plaintiffs believe substantial evidentiary support exists or will exist after a
5
reasonable opportunity for further investigation and discovery, as follows:
6
7 PRELIMINARY STATEMENT
2. This case challenges the legality of Defendants’ participation in a secret and illegal
8
9 government program to intercept and analyze vast quantities of Americans’ telephone and Internet
10 communications, surveillance done without the authorization of a court and in violation of federal
11 electronic surveillance and telecommunications statutes, as well as the First and Fourth Amendments
12
to the United States Constitution.
13
3. In December of 2005, the press revealed that the government had instituted a
14
comprehensive and warrantless electronic surveillance program that violates the Constitution and
15
16 ignores the careful safeguards set forth by Congress. This surveillance program, purportedly
17 authorized by the President at least as early as 2001 and primarily undertaken by the National
18 Security Agency (“NSA”) without judicial review or approval, intercepts and analyzes the
19 communications of millions of Americans. Prior to this revelation, Plaintiffs and class members had
20
no reasonable opportunity to discover the existence of the surveillance program or the violations of
21
law alleged herein.
22
4. But the government did not act – and is not acting – alone. The government requires
23
24 the collaboration of major telecommunications companies to implement its unprecedented and illegal
25 domestic spying program.
26 5. Defendants AT&T Corp. and AT&T Inc. maintain domestic telecommunications

27
facilities over which millions of Americans’ telephone and Internet communications pass every day.
28
AMENDED COMPLAINT FOR DAMAGES, DECLARATORY AND INJUNCTIVE RELIEF –
C-06-0672-JCS - ER 2 - -1-
1 They also manage some of the largest databases in the world containing records of most or all
2 communications made through their myriad telecommunications services.
3
6. On information and belief, AT&T Corp. has opened its key telecommunications
4
facilities and databases to direct access by the NSA and/or other government agencies, intercepting
5
and disclosing to the government the contents of its customers’ communications as well as detailed
6
communications records about millions of its customers, including Plaintiffs and class members.
7
8 7. This collaboration began before AT&T Corp. was acquired by AT&T Inc. (formerly
9 known as SBC Communications, Inc.). On information and belief, Defendants continue to assist the
10 government in its secret surveillance of millions of ordinary Americans.
11
8. Plaintiffs are suing to stop this illegal conduct and hold Defendants responsible for
12
their illegal collaboration in the surveillance program, which has violated the law and damaged the
13
fundamental freedoms of the American public.
14
15 JURISDICTION AND VENUE
16 9. This court has subject matter jurisdiction over the federal claims pursuant to Article
17 III of the United States Constitution and 28 U.S.C. §1331, 28 U.S.C. §2201, 50 U.S.C. §1810, 18
18 U.S.C. §§2520 and 2707, and 47 U.S.C. §605, and over the state claims pursuant to 28 U.S.C.
19 §§1332 and 1367.
20
10. Plaintiffs are informed, believe and thereon allege that Defendants have sufficient
21
contacts with this district generally and, in particular, with the events herein alleged, that Defendants
22
are subject to the exercise of jurisdiction of this court over the person of such Defendants and that
23
24 venue is proper in this judicial district pursuant to 28 U.S.C. §1391.
25 11. Plaintiffs are informed, believe and thereon allege that, based on the places of
26 business of the Defendants identified above and/or on the national reach of Defendants, a substantial
27
28
C-06-0672-JCS - ER 3 - -2-
1 part of the events giving rise to the claims herein alleged occurred in this district and that Defendants
2 and/or agents of Defendants may be found in this district.
3
12. Intradistrict Assignment: Assignment to the San Francisco/Oakland division is
4
proper pursuant to Local Rule 3-2(c) and (d) because a substantial portion of the events and
5
omissions giving rise to this lawsuit occurred in this district and division.
6
7 PARTIES
13. Plaintiff Tash Hepting, a customer service manager, is an individual residing in San
8
9 Jose, California. Hepting has been a subscriber and user of AT&T Corp.’s residential long distance
10 telephone service since at least June 2004, and has used it to call internationally as well as
11 domestically.
12
14. Plaintiff Gregory Hicks is an individual residing in San Jose, California. Hicks, a
13
retired Naval Officer and systems engineer, has been a subscriber and user of AT&T Corp.’s
14
residential long distance telephone service since February 1995. He has regularly used this service
15
16 for calls to foreign countries including Korea, Japan and Spain.
17 15. Plaintiff Carolyn Jewel is an individual residing in Petaluma, California. Jewel, a
18 database administrator and author, has been a subscriber and user of AT&T Corp.’s Worldnet dial-
19 up Internet service since approximately June 2000. She uses this service for web browsing and to
20
send and receive email, including with correspondents in foreign countries such as England,
21
Germany, and Indonesia.
22
16. Plaintiff Erik Knutzen is an individual residing in Los Angeles, California. Knutzen, a
23
24 photographer and land use researcher, was a subscriber and user of AT&T Corp.’s Worldnet dial-up
25 Internet service from at least October 2003 until May 2005. He used this service to send and receive
26 personal and professional emails, with both domestic and international correspondents, and for web
27
browsing, including visits to web sites hosted outside of the United States.
28
C-06-0672-JCS - ER 4 - -3-
1 17. Defendant AT&T Corp. is a New York corporation with its principal place of
2 business in the State of New Jersey.
3
18. Defendant AT&T Inc. is a Delaware corporation with its principal place of business
4
in San Antonio, Texas.
5
19. Both AT&T Corp. and AT&T Inc. are telecommunications carriers, and both offer
6
electronic communications service(s) to the public and remote computing service(s).
7
8 20. On or around November 18, 2005, SBC Communications Inc. (SBC) acquired AT&T
9 Corp. At closing, a wholly-owned subsidiary of SBC merged with and into AT&T Corp., and thus
10 AT&T Corp. became a wholly-owned subsidiary of SBC. SBC adopted AT&T, Inc. as its name
11
following completion of its acquisition of AT&T Corp.
12
21. Prior to the acquisition and merger, AT&T Corp. and SBC both had a significant
13
business presence in California for many years. The new AT&T Inc. and its subsidiary, AT&T
14
15 Corp., continue to have a significant business presence in California.
16 22. AT&T Corp. operates through two principal divisions, its business services division
17 and its consumer services division. AT&T Business Services provides a variety of communications
18 services to domestic and multi-national businesses and government agencies. AT&T Consumer
19
Services provides a variety of communications services to mass-market customers. These services
20
include traditional long distance voice services such as domestic and international dial and toll-free
21
services, as well as operator-assisted services. In addition, AT&T Consumer Services provides
22
23 residential dial-up and DSL Internet services through its “Worldnet” service, as well as offering all-
24 distance services, which bundle AT&T’s facilities-based long distance services with local services.
25 23. AT&T Corp.’s communications facilities constitute one of the world’s most advanced
26
communications networks, spanning more than 50 countries.
27
28
C-06-0672-JCS - ER 5 - -4-
1 24. By the end of 2004, on an average business day, AT&T Corp.’s network handled over
2 300 million voice calls as well as over 4,000 terabytes (million megabytes) of data, including traffic
3
from AT&T Business Services and AT&T Consumer Services, approximately 200 times the amount
4
of data contained in all the books in the Library of Congress.
5
25. By the end of 2004, AT&T Corp. provided long distance service (including both
6
stand-alone and bundled) to approximately 24.6 million residential customers. Before the
7
8 acquisition, AT&T Corp.’s bundled local and long distance service was available in 46 states,
9 covering more than 73 million households.
10 26. By the end of 2004, AT&T Corp. provided its residential Worldnet Internet services
11
to approximately 1.2 million customers. Even prior to its being acquired by SBC, AT&T Corp. was
12
the second largest Internet provider in the country, primarily serving businesses in addition to its
13
Worldnet customers.
14
15 27. The new AT&T Inc. constitutes the largest telecommunications provider in the
16 United States and one of the largest in the world. AT&T Inc. is the largest U.S. provider of both
17 local and long distance services, serving millions of customers nationwide. AT&T Inc.’s
18 international voice service carries more than 18 billion minutes per year, reaching approximately 240
19
countries, linking approximately 400 carriers and offering remote access in approximately 149
20
countries around the globe.
21
28. AT&T Inc. is the country’s largest provider of broadband DSL Internet service, and
22
23 its backbone Internet network carries approximately 4,600 terabytes of data on an average business
24 day to nearly every continent and country.
25 29. According to the Description of the Transaction, Public Interest Showing, and
26
Related Demonstrations filed by AT&T Corp. and SBC with the Federal Communications
27
Commission in anticipation of the merger:
28
C-06-0672-JCS - ER 6 - -5-
1 AT&T is a significant provider of telecommunications and information

technology services to the federal government. AT&T provides network services,
2 systems integration and engineering, and software development services to a broad
range of government agencies, including those involved in national defense,
3 intelligence, and homeland security. AT&T’s federal customers include the White
House, the State Department, the Department of Homeland Security, the Department
4 of Defense, the Department of Justice, and most branches of the armed forces.
AT&T’s support of the intelligence and defense communities includes the
5 performance of various classified contracts. To undertake this work, AT&T employs
thousands of individuals who hold government security clearances, and it maintains
6 special secure facilities for the performance of classified work and the safeguarding
of classified information. In addition to providing services to critical government
7 agencies responsible for national security, both AT&T and SBC support the national
security infrastructure through their participation in all of the key fora for supporting
8 U.S. government national security objectives.
9 30. On information and belief, this characterization was substantially correct when filed,
10 and is substantially correct as to the current AT&T Corp. and AT&T Inc.
11
31. Plaintiffs are currently unaware of the true names and capacities of Defendants sued
12
herein as Does 1-20, and therefore sue these Defendants by using fictitious names. Plaintiffs will
13
amend this complaint to allege their true names and capacities when ascertained. Upon information
14
and belief each fictitiously named Defendant is responsible in some manner for the occurrences
15
16 herein alleged and the injuries to Plaintiffs and class members herein alleged were proximately
17 caused in relation to the conduct of Does 1-20 as well as the named Defendants. Hereafter,
18 Defendants AT&T Corp. and Does 1-8 are referred to collectively as “AT&T Corp.,” and
19
Defendants AT&T Inc. and Does 9-15 are referred to collectively as “AT&T Inc.”
20
FACTUAL ALLEGATIONS RELATED TO ALL COUNTS
21
THE NSA SURVEILLANCE PROGRAM
22
32. The NSA began a classified surveillance program (“the Program”) shortly after
23
September 11, 2001 to intercept the telephone and Internet communications of people inside the
24
25 United States without judicial authorization, a program that continues to this day.
26
27
28
C-06-0672-JCS - ER 7 - -6-
1 33. The President has stated that he authorized the Program in 2001, that he has
2 reauthorized the Program more than 30 times since its inception, and that he intends to continue
3
doing so.
4
34. The Attorney General has admitted that, absent additional authority from Congress,
5
the electronic surveillance conducted by the Program requires a court order under the Foreign
6
Intelligence Surveillance Act of 1978 (50 U.S.C. §§1801, et seq.).
7
8 35. The President and other government officials have admitted that the NSA does not
9 seek judicial review of the Program’s interceptions before or after the surveillance, whether by the
10 Foreign Intelligence Surveillance Court or any other court.
11
36. Neither the President nor the Attorney General personally approves the individual
12
targets of the Program’s electronic surveillance before communications are intercepted.
13
37. Instead, NSA operational personnel identify particular persons, telephone numbers or
14
15 Internet addresses as potential surveillance targets, and NSA shift supervisors approve those targets.
16 38. On information and belief, besides actually eavesdropping on specific conversations,
17 NSA personnel have intercepted large volumes of domestic and international telephone and Internet
18 traffic in search of patterns of interest, in what has been described in press reports as a large “data-
19
mining” program.
20
39. On information and belief, as part of this data-mining program, the NSA intercepts
21
millions of communications made or received by people inside the United States, and uses powerful
22
23 computers to scan their contents for particular names, numbers, words or phrases.
24 40. Additionally, on information and belief, the NSA collects and analyzes a vast amount
25 of communications traffic data to identify persons whose communications patterns the government
26
believes may link them, even if indirectly, to investigatory targets.
27
28
C-06-0672-JCS - ER 8 - -7-
1 41. On information and belief, the NSA has accomplished its massive surveillance
2 operation by arranging with some of the nation’s largest telecommunications companies, including
3
Defendants, to gain direct access to the telephone and Internet communications transmitted via those
4
companies’ domestic telecommunications facilities, and to those companies’ records pertaining to
5
the communications they transmit.
6
7 AT&T PROVIDES THE GOVERNMENT WITH DIRECT

ACCESS TO ITS DOMESTIC TELECOMMUNICATIONS NETWORK
8 42. On information and belief, AT&T Corp. has provided and continues to provide the
9
government with direct access to all or a substantial number of the communications transmitted
10
through its key domestic telecommunications facilities, including direct access to streams of
11
domestic, international and foreign telephone and Internet communications.
12
13 43. On information and belief, AT&T Corp. has installed and used, or assisted
14 government agents in installing or using, interception devices and pen registers and/or trap and trace
15 devices on or in a number of its key telecommunications facilities for use in the Program.
16
44. On information and belief, the interception devices acquire the content of all or a
17
substantial number of the wire or electronic communications transferred through the AT&T Corp.
18
facilities where they have been installed.
19
45. On information and belief, the pen registers and/or trap and trace devices capture,
20
21 record or decode the dialing, routing, addressing and/or signaling information (“DRAS information”)
22 for all or a substantial number of the wire or electronic communications transferred through the
23 AT&T Corp. facilities where they have been installed.
24
46. On information and belief, using these devices, government agents have acquired and
25
are acquiring wire or electronic communications content and DRAS information directly via remote
26
or local control of the device, and/or AT&T Corp. has disclosed and is disclosing those
27
28
C-06-0672-JCS - ER 9 - -8-
1 communications and information to the government after interception, capture, recording or
2 decoding.
3
47. On information and belief, AT&T Corp. used or assisted in the use of these devices to
4
acquire wire or electronic communications to which Plaintiffs and class members were a party, and
5
to acquire DRAS information pertaining to those communications. On information and belief,
6
Defendants continue to do so.
7
8 AT&T HAS PROVIDED AND CONTINUES TO PROVIDE THE

GOVERNMENT WITH DIRECT ACCESS TO DATABASES
9 CONTAINING ITS STORED TELEPHONE AND INTERNET RECORDS
10 48. Defendants AT&T Corp. and AT&T Inc. have provided at all relevant times and
11 continue to provide electronic communication services to the public, i.e., services that provide to
12 users thereof the ability to send or receive wire or electronic communications.
13
49. Defendants AT&T Corp. and AT&T Inc. have provided at all relevant times and
14
continue to provide computer or storage processing services to the public, by means of wire, radio,
15
electromagnetic, photooptical or photoelectronic facilities for the transmission of wire or electronic
16
17 communications, and/or by means of computer facilities or related electronic equipment for the
18 electronic storage of such communications.
19 50. Plaintiffs and class members are, or at pertinent times were, subscribers to or
20 customers of one or more of those services.
21
51. On information and belief, AT&T Corp. has provided and continues to provide the
22
government with direct access to its databases of stored telephone and Internet records, which are
23
updated with new information in real time or near-real time.
24
25 52. On information and belief, AT&T Corp. has disclosed and is currently disclosing to
26 the government records concerning communications to which Plaintiffs and class members were a
27 party, and there is a strong likelihood that Defendants will disclose more of the same in the future.
28
C-06-0672-JCS - ER 10 - -9-
1 53. As reported by the Los Angeles Times, “AT&T has a database code-named Daytona
2 that keeps track of telephone numbers on both ends of calls as well as the duration of all land-line
3
calls. . . . After Sept. 11, intelligence agencies began to view it as a potential investigative tool, and
4
the NSA has had a direct hookup into the database. . . .” Joseph Menn and Josh Meyer, U.S. Spying
5
is Much Wider, Some Suspect, L.A. TIMES, Dec. 25, 2005, at A1. On information and belief, this
6
report is substantially correct.
7
8 54. Daytona is a database management technology originally developed and maintained
9 by the AT&T Laboratories division of AT&T Corp., and is used by AT&T Corp. to manage multiple
10 databases.
11
55. Daytona was designed to handle very large databases and is used to manage
12
“Hawkeye,” AT&T Corp.’s call detail record (“CDR”) database, which contains records of nearly
13
every telephone communication carried over its domestic network since approximately 2001, records
14
15 that include the originating and terminating telephone numbers and the time and length for each call.
16 56. On information and belief, this CDR database contains records pertaining to
17 Plaintiffs’ and class members’ use of AT&T Corp. long distance service and dial-up Internet service,
18 including but not limited to DRAS information and personally identifiable customer proprietary
19
network information (CPNI) that AT&T Corp. obtained by virtue of its provision of
20
telecommunications service.
21
57. As of September 2005, all of the CDR data managed by Daytona, when
22
23 uncompressed, totaled more than 312 terabytes.
24 58. The Daytona system’s speed and powerful query language allow users to quickly and
25 easily search the entire contents of a database to find records that match simple or complex search
26
parameters. For example, a Daytona user can query the Hawkeye database for all calls made to a
27
28
C-06-0672-JCS - ER 11 - - 10 -
1 particular country from a specific area code during a specific month and receive information about
2 all such calls in about one minute.
3
59. Daytona is also used to manage AT&T Corp.’s huge network-security database,
4
known as Aurora, which has been used to store Internet traffic data since approximately 2003. The
5
Aurora database contains huge amounts of data acquired by firewalls, routers, honeypots and other
6
devices on AT&T Corp.’s global IP (Internet Protocol) network and other networks connected to
7
8 AT&T Corp.’s network, including but not limited to DRAS information and personally identifiable
9 CPNI that AT&T Corp. obtained by virtue of its provision of telecommunications service.
10 60. On information and belief, the Aurora database managed and/or accessed via Daytona
11
contains records or other information, including but not limited to DRAS information and CPNI,
12
pertaining to Plaintiffs’ and class members’ use of AT&T Corp.’s Internet services.
13
61. On information and belief, AT&T Corp. has provided the government with direct
14
15 access to the contents of the Hawkeye, Aurora and/or other databases that it manages using Daytona,
16 including all information, records, DRAS information and CPNI pertaining to Plaintiffs and class
17 members, by providing the government with copies of the information in the databases and/or by
18 giving the government access to Daytona’s querying capabilities and/or some other technology
19
enabling the government agents to search the databases’ contents.
20
62. AT&T Inc. has begun a transition process designed to integrate the former SBC’s
21
telecommunications network with AT&T Corp.’s network, ultimately leading into unified IP-based
22
23 networks. AT&T Inc. intends to use AT&T Corp.’s IP network in place of the fee-based transiting
24 and backbone access arrangements it currently has with third parties. In addition, others aspects of
25 both companies will be integrated. For example, SBC Laboratories and AT&T Laboratories will be
26
combined into AT&T Labs to provide technology research and development exclusively to the
27
subsidiaries of AT&T Inc.
28
C-06-0672-JCS - ER 12 - - 11 -
1 63. On information and belief, the facilities and technologies of AT&T Corp, including
2 without limitation the Daytona system and those transmission facilities to which the government has
3
been given direct access as alleged above, are being or will imminently be used by AT&T Inc. to
4
transmit the communications of its customers and to store DRAS information and other records
5
pertaining to those communications. Similarly, the facilities and technologies of the former SBC are
6
being or will imminently be used to transmit the communications of AT&T Corp. customers
7
8 including Plaintiffs and class members.
9 64. On information and belief, there is a strong likelihood that Defendants will continue
10 to intentionally intercept, disclose, divulge and use Plaintiffs’ and class members’ communications
11
and records in cooperation with the Program.
12
CLASS ACTION ALLEGATIONS
13
65. Pursuant to Federal Rules of Civil Procedure, Rule 23 (a) and (b), Plaintiffs Hepting,
14
Hicks, Jewel and Knutzen bring this action on behalf of themselves and a Nationwide Class of
15
16 similarly situated persons defined as:
17 All individuals in the United States that are current residential subscribers or
customers of Defendants’ telephone services or Internet services, or that were
18 residential telephone or Internet subscribers or customers at any time after September
2001.
19
66. The Nationwide Class seeks certification of claims for declaratory relief, injunctive
20
relief and damages pursuant to 50 U.S.C. §1810, 18 U.S.C. §2520, 47 U.S.C. §605, and 18 U.S.C.
21
§2707, in addition to declaratory and injunctive relief for violations of the First and Fourth
22
23 Amendments.
24 67. Plaintiffs Hepting, Hicks, Jewel and Knutzen also bring certain of the claims,
25 identified, on behalf of the following California Subclass:
26
All individuals that are residents of the State of California and that are current
27 residential subscribers or customers of Defendants’ telephone services or Internet
services, or that were residential telephone or Internet subscribers or customers at
28 any time after September 2001.

C-06-0672-JCS - ER 13 - - 12 -
1 68. The California Subclass seeks certification of claims for declaratory and injunctive
2 relief, and for restitution pursuant to the Unfair Competition Law (Cal. Bus. and Prof. Code
3
§§17200, et seq.).
4
69. Excluded from the Nationwide Class and California Subclass are the officers,
5
directors, and employees of Defendants, and the legal representatives, heirs, successors, and assigns
6
of Defendants.
7
8 70. Also excluded from the Nationwide Class and California Subclass are any foreign
9 powers, as defined by 50 U.S.C. §1801(a), or any agents of foreign powers, as defined by 50 U.S.C.
10 §1801(b(1)(A), including without limitation anyone who knowingly engages in sabotage or
11
international terrorism, or activities that are in preparation therefore.
12
71. This action is brought as a class action and may properly be so maintained pursuant to
13
the provisions of the Federal Rules of Civil Procedure, Rule 23. Plaintiffs reserve the right to
14
15 modify the Nationwide Class and the California Subclass definitions and the class period based on
16 the results of discovery.
17 72. Numerosity of the Nationwide Class and California Subclass: Members of the
18 Nationwide Class and California Subclass are so numerous that their individual joinder is
19
impracticable. The precise numbers and addresses of members of the Nationwide Class and
20
California Subclass are unknown to the Plaintiffs. Plaintiffs estimate that the Nationwide Class
21
consists of millions of members and the California Subclass consists of hundreds of thousands of
22
23 members. The precise number of persons in both the Nationwide Class and California Subclass and
24 their identities and addresses may be ascertained from Defendants’ records.
25 73. Existence of Common Questions of Fact and Law: There is a well-defined

26
community of interest in the questions of law and fact involved affecting the members of the
27
Nationwide Class and California Subclass. These common legal and factual questions include:
28
C-06-0672-JCS - ER 14 - - 13 -
1 (a) Whether Defendants, acting as agents or instruments of the government, have
2 violated the First and Fourth Amendment rights of Nationwide Class members, or are currently
3 doing so;
4 (b) Whether Defendants have subjected Nationwide Class members to electronic
5 surveillance, or have disclosed or used information obtained by electronic surveillance of the
6 Nationwide Class members, in violation of 50 U.S.C. §1809, or are currently doing so;
7 (c) Whether Defendants have intercepted, used or disclosed Nationwide Class
8 members’ communications in violation of 18 U.S.C. §2511, or are currently doing so;
9 (d) Whether Defendants have divulged or published the existence, contents,
10 substance, purport, effect, or meaning of Nationwide Class members’ communications in violation
11 of 47 U.S.C. §605(a), or are currently doing so;
12 (e) Whether Defendants have divulged the contents of Nationwide Class
13 members’ communications in violation of 18 U.S.C. §2702(a)(1) or (a)(2), or are currently doing so;
14 (f) Whether Defendants have divulged subscriber information or other records
15 pertaining to Nationwide Class members in violation of 18 U.S.C. §2702(a)(3), or are currently
16 doing so;
17 (g) Whether Defendants’ interception, use or disclosure of California Subclass
18 members’ communications, or the disclosure of subscriber information or other records pertaining to
19 California Subclass members, constitutes unfair, unlawful and/or fraudulent business practices in
20 violation of California’s Unfair Competition Law;
21 (h) Whether Plaintiffs and California Subclass members are entitled to restitution,
22 disgorgement of profits, or other equitable relief to remedy Defendants’ unfair, unlawful and/or
23 fraudulent business practices;
24 (i) Whether Plaintiffs and class members are entitled to recover compensatory,
25 statutory and punitive damages, whether as a result of Defendants’ fraudulent, illegal and deceitful
26 conduct, and/or otherwise; and
27 (j) Whether Plaintiffs and class members are entitled to an award of reasonable
28 attorneys’ fees, pre-judgment interest, and costs of this suit.

C-06-0672-JCS - ER 15 - - 14 -
1 74. Typicality: Plaintiffs’ claims are typical of the claims of the members of the
2 Nationwide Class and California Subclass because Plaintiffs are or were subscribers to the Internet
3
and telephone services of Defendants. Plaintiffs and all members of the Nationwide Class and
4
California Subclass have similarly suffered harm arising from Defendants’ violations of law, as
5
alleged herein.
6
75. Adequacy: Plaintiffs are adequate representatives of the Nationwide Class and
7
8 California Subclass because their interests do not conflict with the interests of the members of the
9 classes they seek to represent. Plaintiffs have retained counsel competent and experienced in
10 complex class action litigation and Plaintiffs intends to prosecute this action vigorously. Plaintiffs
11
and their counsel will fairly and adequately protect the interests of the members of the Nationwide
12
Class and California Subclass.
13
76. This suit may also be maintained as a class action pursuant to Federal Rules of Civil
14
15 Procedure, Rule 23(b)(2) because Plaintiffs and both the Nationwide Class and California Subclass
16 seek declaratory and injunctive relief, and all of the above factors of numerosity, common questions
17 of fact and law, typicality and adequacy are present. Moreover, Defendants have acted on grounds
18 generally applicable to Plaintiffs and both the Nationwide Class and California Subclass as a whole,
19
thereby making declaratory and/or injunctive relief proper.
20
77. Predominance and Superiority: This suit may also be maintained as a class action
21
under Federal Rules of Civil Procedure, Rule 23(b)(3) because questions of law and fact common to
22
23 the Nationwide Class and California Subclass predominate over the questions affecting only
24 individual members of the classes and a class action is superior to other available means for the fair
25 and efficient adjudication of this dispute. The damages suffered by each individual class member
26
may be relatively small, especially given the burden and expense of individual prosecution of the
27
complex and extensive litigation necessitated by Defendants’ conduct. Furthermore, it would be
28
C-06-0672-JCS - ER 16 - - 15 -
1 virtually impossible for the class members, on an individual basis, to obtain effective redress for the
2 wrongs done to them. Moreover, even if class members themselves could afford such individual
3
litigation, the court system could not. Individual litigation presents a potential for inconsistent or
4
contradictory judgments. Individualized litigation increases the delay and expense to all parties and
5
the court system presented by the complex legal issue of the case. By contrast, the class action
6
device presents far fewer management difficulties, and provides the benefits of a single adjudication,
7
8 economy of scale and comprehensive supervision by a single court.
9 COUNT I
10 Violation of Plaintiffs’ and Class Members’ Rights Under the First and Fourth
Amendments to the United States Constitution (Plaintiffs Hepting, Hicks, Jewel and
11 Knutzen and the Nationwide Class [Including the California Subclass] vs. Defendants)
12
78. Plaintiffs repeat and incorporate herein by reference the allegations in the preceding
13
paragraphs of this complaint, as if set forth fully herein.
14
79. On information and belief, Plaintiffs and class members have a reasonable
15
expectation of privacy in their communications, contents of communications, and/or records
16
17 pertaining to their communications transmitted, collected, and/or stored by AT&T Corp.
18 80. On information and belief, Plaintiffs and class members use AT&T Corp.’s services
19 to speak or receive speech anonymously and to associate privately.
20
81. On information and belief, the above-described acts of interception, disclosure,
21
divulgence and/or use of Plaintiffs’ and class members’ communications, contents of
22
communications, and records pertaining to their communications occurred without judicial or other
23
24 lawful authorization, probable cause, and/or individualized suspicion.
25 82. On information and belief, at all relevant times, the government instigated, directed
26 and/or tacitly approved all of the above-described acts of AT&T Corp.
27
28
C-06-0672-JCS - ER 17 - - 16 -
1 83. On information and belief, at all relevant times, the government knew of and/or
2 acquiesced in all of the above-described acts of AT&T Corp., and failed to protect the First and
3
Fourth Amendment rights of the Plaintiffs and class members by obtaining judicial authorization.
4
84. In performing the acts alleged herein, AT&T Corp. had at all relevant times a primary
5
or significant intent to assist or purpose of assisting the government in carrying out the Program
6
and/or other government investigations, rather than to protect its own property or rights.
7
8 85. By the acts alleged herein, AT&T Corp. acted as an instrument or agent of the
9 government, and thereby violated Plaintiffs’ and class members’ reasonable expectations of privacy
10 and denied Plaintiffs and class members their right to be free from unreasonable searches and
11
seizures as guaranteed by the Fourth Amendment to the Constitution of the United States, and
12
additionally violated Plaintiffs’ and class members’ rights to speak and receive speech anonymously
13
and associate privately under the First Amendment.
14
15 86. By the acts alleged herein, AT&T Corp.’s conduct proximately caused harm to
16 Plaintiffs and class members.
17 87. On information and belief, AT&T Corp.’s conduct was done intentionally, with
18 deliberate indifference, or with reckless disregard of, Plaintiffs’ and class members’ constitutional
19
rights.
20
88. On information and belief, there is a strong likelihood that Defendants are now
21
engaging in and will continue to engage in the above-described violations of Plaintiffs’ and class
22
23 members’ constitutional rights, as agents of the government, and that likelihood represents a credible
24 threat of immediate future harm.
25 89. Wherefore, Plaintiffs and class members pray for this court to declare that AT&T
26
Corp. has violated their rights under the First and Fourth Amendments to the United States
27
Constitution, and enjoin Defendants and their agents, successors and assigns from violating the
28
C-06-0672-JCS - ER 18 - - 17 -
1 Plaintiffs’ and class members’ rights under the First and Fourth Amendments to the United States
2 Constitution.
3
COUNT II
4
Electronic Surveillance Under Color of Law in Violation of 50 U.S.C. §1809 (Plaintiffs
5 Hepting, Hicks, Jewel and Knutzen and the Nationwide Class [Including the California
Subclass] vs. Defendants)
6
7
8
9 91. In relevant part, 50 U.S.C. §1809 provides that:
10 (a) Prohibited activities – A person is guilty of an offense if he intentionally – (1)

engages in electronic surveillance under color of law except as authorized by statute;
11 or (2) discloses or uses information obtained under color of law by electronic
surveillance, knowing or having reason to know that the information was obtained
12 through electronic surveillance not authorized by statute.
13 92. In relevant part 50 U.S.C. §1801 provides that:
14 (f) “Electronic surveillance” means – (1) the acquisition by an electronic,

mechanical, or other surveillance device of the contents of any wire or radio
15 communication sent by or intended to be received by a particular, known United
States person who is in the United States, if the contents are acquired by intentionally
16 targeting that United States person, under circumstances in which a person has a
reasonable expectation of privacy and a warrant would be required for law
17 enforcement purposes; (2) the acquisition by an electronic, mechanical, or other
surveillance device of the contents of any wire communication to or from a person in
18 the United States, without the consent of any party thereto, if such acquisition occurs
in the United States, but does not include the acquisition of those communications of
19 computer trespassers that would be permissible under section 2511(2)(i) of Title 18;
(3) the intentional acquisition by an electronic, mechanical, or other surveillance
20 device of the contents of any radio communication, under circumstances in which a
person has a reasonable expectation of privacy and a warrant would be required for
21 law enforcement purposes, and if both the sender and all intended recipients are
located within the United States; or (4) the installation or use of an electronic,
22 mechanical, or other surveillance device in the United States for monitoring to
acquire information, other than from a wire or radio communication, under
23 circumstances in which a person has a reasonable expectation of privacy and a
warrant would be required for law enforcement purposes.
24
93. On information and belief, AT&T Corp. has intentionally acquired, by means of a
25
26 surveillance device, the contents of one or more wire communications to or from Plaintiffs and class
27 members or other information in which Plaintiffs or class members have a reasonable expectation of
28 privacy, without the consent of any party thereto, and such acquisition occurred in the United States.
C-06-0672-JCS - ER 19 - - 18 -
1 94. By the acts alleged herein, AT&T Corp. has intentionally engaged in electronic
2 surveillance (as defined by 50 U.S.C. §1801(f)) under color of law, but which is not authorized by
3
any statute, and AT&T Corp. has intentionally subjected Plaintiffs and class members to such
4
electronic surveillance, in violation of 50 U.S.C. §1809.
5
95. Additionally or in the alternative, by the acts alleged herein, AT&T Corp. has
6
intentionally disclosed or used information obtained under color of law by electronic surveillance,
7
8 knowing or having reason to know that the information was obtained through electronic surveillance
9 not authorized by statute.
10 96. AT&T Corp. did not notify Plaintiffs or class members of the above-described
11
electronic surveillance, disclosure, and/or use, nor did Plaintiffs or class members consent to such.
12
13
engaging in and will continue to engage in the above-described electronic surveillance, disclosure,
14
15 and/or use of Plaintiffs’ and class members’ wire communications described herein, and that
16 likelihood represents a credible threat of immediate future harm.
17 98. Plaintiffs and class members have been and are aggrieved by Defendants’ electronic
18 surveillance, disclosure, and/or use of their wire communications.
19
99. Pursuant to 50 U.S.C. §1810, which provides a civil action for any person who has
20
been subjected to an electronic surveillance or about whom information obtained by electronic
21
surveillance of such person has been disclosed or used in violation of 50 U.S.C. §1809, Plaintiffs and
22
23 class members seek equitable and declaratory relief; statutory damages for each Plaintiff and class
24 member of whichever is the greater of $100 a day for each day of violation or $1,000; punitive
25 damages as appropriate; and reasonable attorneys’ fees and other litigation costs reasonably incurred.
26
27
28
C-06-0672-JCS - ER 20 - - 19 -
1 COUNT III
2 Interception, Disclosure and/or Use of Communications in Violation of 18 U.S.C. §2511
(Plaintiffs Hepting, Hicks, Jewel and Knutzen and the Nationwide Class
3 [Including the California Subclass] vs. Defendants)
4 100. Plaintiffs repeat and incorporate herein by reference the allegations in the preceding
5
6
101. In relevant part, 18 U.S.C. §2511 provides that:
7
(1) Except as otherwise specifically provided in this chapter any person who – (a)
8 intentionally intercepts, endeavors to intercept, or procures any other person to
intercept or endeavor to intercept, any wire, oral, or electronic communication . . . (c)
9 intentionally discloses, or endeavors to disclose, to any other person the contents of
any wire, oral, or electronic communication, knowing or having reason to know that
10 the information was obtained through the interception of a wire, oral, or electronic
communication in violation of this subsection . . . [or](d) intentionally uses, or
11 endeavors to use, the contents of any wire, oral, or electronic communication,
knowing or having reason to know that the information was obtained through the
12 interception of a wire, oral, or electronic communication in violation of this
subsection . . . shall be punished as provided in subsection (4) or shall be subject to
13 suit as provided in subsection (5).
14 18 U.S.C. §2511 further provides that:
15 (3)(a) Except as provided in paragraph (b) of this subsection, a person or entity

providing an electronic communication service to the public shall not intentionally
16 divulge the contents of any communication (other than one to such person or entity,
or an agent thereof) while in transmission on that service to any person or entity
17 other than an addressee or intended recipient of such communication or an agent of
such addressee or intended recipient.
18
102. By the acts alleged herein, AT&T Corp. has intentionally intercepted, endeavored to
19
20 intercept, or procured another person to intercept or endeavor to intercept, Plaintiffs’ and class
21 members’ wire or electronic communications in violation of 18 U.S.C. §2511(1)(a); and/or
22 103. By the acts alleged herein, AT&T Corp. has intentionally disclosed, or endeavored to
23
disclose, to another person the contents of Plaintiffs’ and class members’ wire or electronic
24
communications, knowing or having reason to know that the information was obtained through the
25
interception of wire or electronic communications in violation of 18 U.S.C. §2511(1)(c); and/or
26
104. By the acts alleged herein, AT&T Corp. has intentionally used, or endeavored to use,
27
28 the contents of Plaintiffs’ and class members’ wire or electronic communications, while knowing or
C-06-0672-JCS - ER 21 - - 20 -
1 having reason to know that the information was obtained through the interception of wire or
2 electronic communications in violation of 18 U.S.C. §2511(1)(d); and/or
3
105. On information and belief, AT&T Corp. has intentionally divulged the contents of
4
Plaintiffs’ and class members’ wire or electronic communications to persons or entities other than
5
the addressee or intended recipient, or the agents of same, or other providers of wire or electronic
6
communication service, while those communications were in transmission on AT&T Corp.’s
7
8 electronic communications services, in violation of 18 U.S.C. §2511(3)(a).
9 106. AT&T Corp. did not notify Plaintiffs or class members of the above-described
10 intentional interception, disclosure, divulgence and/or use of their wire or electronic
11
communications, nor did Plaintiffs or class members consent to such.
12
13
engaging in and will continue to engage in the above-described intentional interception, disclosure,
14
15 divulgence and/or use of Plaintiffs’ and class members’ wire or electronic communications, and that
17 108. Plaintiffs and class members have been and are aggrieved by Defendants’ intentional
18 interception, disclosure, divulgence and/or use of their wire or electronic communications.
19
109. Pursuant to 18 U.S.C. §2520, which provides a civil action for any person whose wire
20
or electronic communications have been intercepted, disclosed or intentionally used in violation of
21
18 U.S.C. §2511, Plaintiffs and class members seek equitable and declaratory relief; statutory
22
23 damages for each Plaintiff and class member of whichever is the greater of $100 a day for each day
24 of violation or $10,000; punitive damages as appropriate; and reasonable attorneys’ fees and other
25 litigation costs reasonably incurred.
26
27
28
C-06-0672-JCS - ER 22 - - 21 -
1 COUNT IV
2 Unauthorized Publication and/or Use of Communications in Violation of 47 U.S.C. §605
(Plaintiffs Hepting, Hicks, Jewel and Knutzen and The NationwideClass
3 [Including the California Subclass] vs. Defendants)
4 110. Plaintiffs repeat and incorporate herein by reference the allegations in the preceding
5
6
111. In relevant part, 47 U.S.C. §605 provides that:
7
(a) Practices prohibited – Except as authorized by chapter 119, Title 18, no
8 person receiving, assisting in receiving, transmitting, or assisting in transmitting, any
interstate or foreign communication by wire or radio shall divulge or publish the
9 existence, contents, substance, purport, effect, or meaning thereof, except through
authorized channels of transmission or reception, (1) to any person other than the
10 addressee, his agent, or attorney, (2) to a person employed or authorized to forward
such communication to its destination, (3) to proper accounting or distributing
11 officers of the various communicating centers over which the communication may be
passed, (4) to the master of a ship under whom he is serving, (5) in response to a
12 subpoena issued by a court of competent jurisdiction, or (6) on demand of other
lawful authority.
13
112. AT&T Corp. received, assisted in receiving, transmitted, or assisted in transmitting,
14
15 Plaintiffs’ and class members’ interstate or foreign communications by wire or radio.
16 113. By the acts alleged herein, AT&T Corp. divulged or published the existence,
17 contents, substance, purport, effect, or meaning of such communications, by means other than
18
through authorized channels of transmission or reception, in violation of 47 U.S.C. §605.
19
114. On information and belief, such divulgence or publication was willful and for
20
purposes of direct or indirect commercial advantage or private financial gain.
21
115. AT&T Corp. did not notify Plaintiffs or class members of the divulgence or
22
23 publication of their communications, nor did Plaintiffs or class members consent to such.
24 116. On information and belief, there is a strong likelihood that Defendants are now
25 engaging in and will continue to engage in the above-described divulgence or publication of
26
Plaintiffs’ and class members’ wire or radio communications, and that likelihood represents a
27
credible threat of immediate future harm.
28
C-06-0672-JCS - ER 23 - - 22 -
1 117. Plaintiffs and class members have been and are aggrieved by Defendants’ divulgence
2 or publication of their wire or radio communications.
3
118. Pursuant to 47 U.S.C. §605(e)(3)(A), which provides a civil action for any person
4
whose wire or electronic communications have been divulged or published in violation of 47 U.S.C.
5
§605(a), Plaintiffs and class members seek temporary and final injunctions on such terms as the
6
Court deems reasonable to prevent or restrain such violations; statutory damages of not less than
7
8 $1,000 or more than $10,000 for each violation aggrieving each Plaintiff and class member, as the
9 Court considers just; in the Court’s discretion, an increase in the reward of damages to each Plaintiff
10 and class member by an amount of not more than $100,000 for each violation; and the recovery of
11
full costs, including reasonable attorneys’ fees.
12
COUNT V
13
Divulgence of Communications Contents in Violation of 18 U.S.C. §§2702(a)(1)
14 and/or (a)(2) (Plaintiffs Hepting, Hicks, Jewel and Knutzen and the Natiowide Class
[Including the California Subclass] vs. Defendants)
15
16
17 paragraphs of this complaint, as if set forth fully herein.

19 (a) Prohibitions. – Except as provided in subsection (b) – (1) a person or entity
providing an electronic communication service to the public shall not knowingly
20 divulge to any person or entity the contents of a communication while in electronic
storage by that service; and (2) a person or entity providing remote computing
21 service to the public shall not knowingly divulge to any person or entity the contents
of any communication which is carried or maintained on that service – (A) on behalf
22 of, and received by means of electronic transmission from (or created by means of
computer processing of communications received by means of electronic
23 transmission from), a subscriber or customer of such service; (B) solely for the
purpose of providing storage or computer processing services to such subscriber or
24 customer, if the provider is not authorized to access the contents of any such
communications for purposes of providing any services other than storage or
25 computer processing. . . .
26 121. On information and belief, AT&T Corp. knowingly divulged to one or more persons
27
or entities the contents of Plaintiffs’ and class members’ communications while in electronic storage
28
C-06-0672-JCS - ER 24 - - 23 -
1 by an AT&T Corp. electronic communication service, and/or while carried or maintained by an
2 AT&T Corp. remote computing service, in violation of 18 U.S.C. §§2702(a)(1) and/or (a)(2).
3
122. AT&T Corp. did not notify Plaintiffs or class members of the divulgence of their
4
communications, nor did Plaintiffs or class members consent to such.
5
6
engaging in and will continue to engage in the above-described divulgence of Plaintiffs’ and class
7
8 members’ communications while in electronic storage by Defendants’ electronic communication
9 service(s), and/or while carried or maintained by Defendants’ remote computing service(s), and that
11
124. Plaintiffs and class members have been and are aggrieved by Defendants’ above-
12
described divulgence of the contents of their communications.
13
125. Pursuant to 18 U.S.C. §2707, which provides a civil action for any person aggrieved
14
15 by knowing or intentional violation of 18 U.S.C. §2702, Plaintiffs and class members seek such
16 preliminary and other equitable or declaratory relief as may be appropriate; statutory damages of no
17 less than $1000 for each aggrieved Plaintiff or class member; punitive damages as the Court
18 considers just; and reasonable attorneys’ fees and other litigation costs reasonably incurred.
19
COUNT VI
20
Divulgence Of Communications Records In Violation Of 18 U.S.C. §2702(A)(3)
21 (Plaintiffs Hepting, Hicks, Jewel and Knutzen and the Nationwide Class
[Including the California Subclass] vs. Defendants)
22
23
24 paragraphs of this complaint, as if set forth fully herein.
26 (a) Prohibitions. – Except as provided in subsection (b) – (3) a provider of

remote computing service or electronic communication service to the public shall not
27 knowingly divulge a record or other information pertaining to a subscriber to or
customer of such service (not including the contents of communications covered by
28 paragraph (1) or (2)) to any governmental entity.
C-06-0672-JCS - ER 25 - - 24 -
1 128. On information and belief, AT&T Corp., a provider of remote computing service and
2 electronic communication service to the public, knowingly divulged records or other information
3
pertaining to Plaintiffs and class members to a governmental entity in violation of 18 U.S.C.
4
§2702(a)(3).
5
129. AT&T Corp. did not notify Plaintiffs or class members of the divulgence of these
6
records and other information pertaining to them and their use of AT&T Corp. services, nor did
7
8 Plaintiffs or class members consent to such.
9 130. On information and belief, there is a strong likelihood that Defendants are now
10 engaging in and will continue to engage in the above-described divulgence of records or other
11
information pertaining to Plaintiffs and class members, and that likelihood represents a credible
12
threat of immediate future harm.
13
131. Plaintiffs and class members have been and are aggrieved by Defendants’ above-
14
15 described divulgence of records or other information pertaining to Plaintiffs and class members.
16 132. Pursuant to 18 U.S.C. §2707, which provides a civil action for any person aggrieved
17 by knowing or intentional violation of 18 U.S.C. §2702, Plaintiffs and class members seek such
18 preliminary and other equitable or declaratory relief as may be appropriate; statutory damages of no
19
less than $1000 for each aggrieved Plaintiff or class member; punitive damages as the Court
20
considers just; and reasonable attorneys’ fee and other litigation costs reasonably incurred.
21
COUNT VII
22
Unfair, Unlawful And Deceptive Business Practices
23
(Plaintiffs Hepting, Hicks, Jewel and Knutzen and the California Subclass vs. Defendants)
24
25
26
134. Defendants have engaged in unfair, unlawful and/or fraudulent business practices as
27
28 set forth above.

C-06-0672-JCS - ER 26 - - 25 -
1 135. By engaging in the acts and practices described herein, Defendants have committed
2 one or more unfair business practices within the meaning of Bus. & Prof. Code §§17200, et seq.
3
Specifically, Defendants’ business practices offend the public policies set forth in California
4
Constitution Art. 1, section 1.
5
136. Defendants’ above-described deceptive and misleading acts and practices have
6
deceived and/or are likely to deceive Plaintiffs and other California Subclass members. Plaintiffs
7
8 were, in fact, deceived as to the terms and conditions of services provided by defendants. Plaintiffs
9 and California Subclass members have suffered harm as a result of Defendants’ misrepresentations
10 and/or omissions.
11
137. Defendants’ acts and practices are also unlawful because, as described above, they
12
violate the First and Fourth Amendments to the United States Constitution, 50 U.S.C. §1809, 18
13
U.S.C. §2511, 47 U.S.C. §605, 18 U.S.C. §2702(a)(1) and/or (a)(2), and 18 U.S.C. §2702(a)(3).
14
15 138. AT&T Corp.’s acts and practices are also unlawful because they violate 18 U.S.C.
16 §3121.

18 (a) In general. – Except as provided in this section, no person may install or use a
pen register or a trap and trace device without first obtaining a court order under
19 section 3123 of this title or under the Foreign Intelligence Surveillance Act of 1978
(50 U.S.C. 1801 et seq.).
20
As defined by 18 U.S.C. §3127:
21
(3) the term “pen register” means a device or process which records or decodes
22 dialing, routing, addressing, or signaling information transmitted by an instrument or
facility from which a wire or electronic communication is transmitted, provided,
23 however, that such information shall not include the contents of any communication,
but such term does not include any device or process used by a provider or customer
24 of a wire or electronic communication service for billing, or recording as an incident
to billing, for communications services provided by such provider or any device or
25 process used by a provider or customer of a wire communication service for cost
accounting or other like purposes in the ordinary course of its business;
26
(4) the term “trap and trace device” means a device or process which captures the
27 incoming electronic or other impulses which identify the originating number or other
dialing, routing, addressing, and signaling information reasonably likely to identify
28
C-06-0672-JCS - ER 27 - - 26 -
1 the source of a wire or electronic communication, provided, however, that such

information shall not include the contents of any communication;
2
140. On information and belief, AT&T Corp. installed or used pen registers and/or trap
3
and trace devices without first obtaining a court order under 18 U.S.C. §3123 or under the Foreign
4
5 Intelligence Surveillance Act of 1978 (50 U.S.C. §§1801, et seq.), and continue to do so.
6 141. On information and belief, the pen registers and/or trap and trace devices installed
7 and used by AT&T Corp. have captured, recorded, or decoded, and continue to capture, record or
8 decode, dialing, routing, addressing or signaling information pertaining to Plaintiff and/or California
9
Subclass members’ wire or electronic communications.
10
142. AT&T Corp. did not notify Plaintiffs or California Subclass members of the
11
installation or use of pen registers and/or trap and trace devices, nor did Plaintiffs or California
12
13 Subclass members consent to such.
14 143. AT&T Corp.’s acts and practices are also unlawful because they violate 47 U.S.C.
15 §222, which in relevant part provides that:
16
(c) Confidentiality of customer proprietary network information – (1) Privacy
17 requirements for telecommunications carriers – Except as required by law or with the
approval of the customer, a telecommunications carrier that receives or obtains
18 customer proprietary network information by virtue of its provision of a
telecommunications service shall only use, disclose, or permit access to individually
19 identifiable customer proprietary network information in its provision of (A) the
telecommunications service from which such information is derived, or (B) services
20
necessary to, or used in, the provision of such telecommunications service, including
21 the publishing of directories.
22 144. AT&T Corp. is a telecommunications carrier that obtains and has obtained customer
23 proprietary network information by virtue of its provision of telecommunications service.
24
145. On information and belief, AT&T Corp. used, disclosed and/or provided to
25
government entities individually identifiable customer proprietary network information pertaining to
26
Plaintiffs and California Subclass members, and continue to do so.
27
28
C-06-0672-JCS - ER 28 - - 27 -
1 146. AT&T Corp. did not notify Plaintiffs or California Subclass members of the
2 disclosure and/or provision of their personally identifiable customer proprietary network information
3
to government entities, nor did Plaintiffs or California Subclass members consent to such.
4
147. Plaintiffs and the California Subclass have suffered injury in fact and have lost money
5
or property as a result of such unfair and unlawful business practices. Such injuries and losses
6
include, but are not limited to, the service fees and other fees and charges paid to AT&T Corp.
7
8 Neither the Plaintiffs nor any reasonable California Subclass member would have paid such fees and
9 charges for AT&T Corp. services had they first known of AT&T Corp.’s unlawful acts and
10 practices.
11
12
engaging in and will continue to engage in the above-described electronic surveillance, disclosure,
13
and/or use of Plaintiffs’ and class members’ wire communications, and that likelihood represents a
14
15 credible threat of immediate future harm.
16 149. Plaintiffs and the California Subclass seek restitution, disgorgement, injunctive relief
17 and all other relief from Defendants allowed under §§17200, et seq. Plaintiffs and the California
18 Subclass also seek attorneys’ fees pursuant to Cal. Code Civ. Proc. §1021.5, as well as such other
19
and further relief as the Court deems just and proper.
20
PRAYER FOR RELIEF
21
WHEREFORE, the Plaintiffs for themselves and all others similarly situated respectfully
22
request that the Court:
23
A. Declare that Defendants’ participation in the Program as alleged herein violates
24
applicable law including without limitation:
25
(i) The First and Fourth Amendments to the United States Constitution,
26
50 U.S.C. §1809, 18 U.S.C. §2511, 47 U.S.C. §605, and 18 U.S.C. §2702, as to Plaintiffs and the
27
Nationwide Class; and
28
C-06-0672-JCS - ER 29 - - 28 -
1 (ii) Cal. Bus. & Prof. Code §§17200, et seq., as to Plaintiffs and the
2 California Subclass.
3 B. Award equitable relief, including without limitation, a preliminary and permanent
4 injunction prohibiting Defendants’ continued or future participation in the Program:
5 (i) Pursuant to the First and Fourth Amendments to the United States
6 Constitution, 50 U.S.C. §1810, 18 U.S.C. §2520(b)(1), 47 U.S.C. §605(e)(3)(b)(i), and 18 U.S.C.
7 §2707(b)(1), as to the Plaintiffs and the Nationwide Class; and
8 (ii) Pursuant to Cal. Bus. & Prof. Code §§17200, et seq., as to Plaintiffs
9 and California Subclass;
10 C. Award statutory damages to the extent permitted by law to each Plaintiff and class
11 member in the sum of:
12 (i) $100 per day for each day of violation of 50 U.S.C. §1809 aggrieving
13 that Plaintiff or class member or $1,000, whichever is greater, pursuant to 50 U.S.C. §1810(a);
14 (ii) $100 a day for each violation of 18 U.S.C. §2511 aggrieving that
15 Plaintiff or class member or $10,000, whichever is greater, pursuant to 18 U.S.C. §2520(c)(2)(A);
16 (iii) Not less than $1,000 or more than $10,000 for each violation
17 aggrieving that Plaintiff or class member, as the court considers just, pursuant to 47 U.S.C.
18 §605(e)(3)(C)(i)(II); and
19 (iv) $1000 pursuant to 18 U.S.C. §2707(c);
20 D. Award punitive damages to the extent permitted by law to each Plaintiff and class
21 member, including without limitation:
22 (i) An appropriate sum pursuant to 50 U.S.C. §1810(b);
23 (ii) An appropriate sum pursuant to 18 U.S.C. §2520(b)(2); and
24 (iii) Not more than $100,000 per violation of 47 U.S.C. §605(a) aggrieving
25 that Plaintiff or class member, in the court’s discretion, pursuant to 47 U.S.C. §605(e)(3)(C)(ii);
26 E. Award to Plaintiffs attorneys’ fees and other costs of suit to the extent permitted by
27 law, including without limitation pursuant to 50 U.S.C. §1810(c), 18 U.S.C. §2520(b)(3), 47 U.S.C.
28 §605(e)(3)(B)(iii), 18 U.S.C. §2707(b)(3), and Cal. Code Civ. Proc. §1021.5;

C-06-0672-JCS - ER 30 - - 29 -
1 F. Award restitution, disgorgement, preliminary and permanent injunctive relief and all
2 other relief allowed under §§17200, et seq. to Plaintiffs and the California Subclass;
3 G. Grant such other and further relief as the Court deems just and proper.
4 JURY DEMAND
5 Plaintiffs hereby request a jury trial for all issues triable by jury including, but not limited to,
6 those issues and claims set forth in any amended complaint or consolidated action.
7 DATED: February 22, 2006 LERACH COUGHLIN STOIA GELLER

RUDMAN & ROBBINS LLP
8 REED R. KATHREIN
JEFF D. FRIEDMAN
9 SHANA E. SCARLETT
10
11 s/ REED R. KATHREIN
REED R. KATHREIN
12
100 Pine Street, Suite 2600
13 San Francisco, CA 94111
Telephone: 415/288-4545
14 415/288-4534 (fax)
15 TRABER & VOORHEES

BERT VOORHEES
16 THERESA M. TRABER
128 North Fair Oaks Avenue, Suite 204
17 Pasadena, CA 91103
Telephone: 626/585-9611
18 626/577-7079 (fax)
19 ELECTRONIC FRONTIER FOUNDATION

CINDY COHN
20 LEE TIEN
KURT OPSAHL
21 KEVIN S. BANKSTON
CORYNNE MCSHERRY
22 JAMES S. TYRE
454 Shotwell Street
Telephone: 415/436-9333
24 415/436-9993 (fax)
25 Attorneys for Plaintiffs

T:\CasesSF\AT&T Privacy\cpt00028368.doc
26
27
28
C-06-0672-JCS - ER 31 - - 30 -
1 CERTIFICATE OF SERVICE
2 I hereby certify that on February 22, 2006, I electronically filed the foregoing with the Clerk
3 of the Court using the CM/ECF system which will send notification of such filing to the e-mail
4 addresses denoted on the attached Electronic Mail Notice List, and I hereby certify that I have
5 mailed the foregoing document or paper via the United States Postal Service to the non-CM/ECF
6 participants indicated on the attached Manual Notice List.
7 s/ REED R. KATHREIN
REED R. KATHREIN
8
LERACH COUGHLIN STOIA GELLER
9 RUDMAN & ROBBINS LLP
100 Pine Street, 26th Floor
Telephone: 415/288-4545
11 415/288-4534 (fax)
E-mail:
12
13
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1
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8
9 IN THE UNITED STATES DISTRICT COURT
10 FOR THE NORTHERN DISTRICT OF CALIFORNIA
11
United States District Court
12
For the Northern District of California
TASH HEPTING, et al, No C-06-672 VRW

13 Plaintiffs, ORDER
14 v
15 AT&T CORPORATION, et al,
16 Defendants.
/
17
18 Plaintiffs allege that AT&T Corporation (AT&T) and its
19 holding company, AT&T Inc, are collaborating with the National
20 Security Agency (NSA) in a massive warrantless surveillance program
21 that illegally tracks the domestic and foreign communications and
22 communication records of millions of Americans. The first amended
23 complaint (Doc #8 (FAC)), filed on February 22, 2006, claims that
24 AT&T and AT&T Inc have committed violations of:
25 (1) The First and Fourth Amendments to the United States
26 Constitution (acting as agents or instruments of the
27 government) by illegally intercepting, disclosing,
28 divulging and/or using plaintiffs’ communications;
- ER 236 -
1 (2) Section 109 of Title I of the Foreign Intelligence

2 Surveillance Act of 1978 (FISA), 50 USC § 1809, by
3 engaging in illegal electronic surveillance of
4 plaintiffs’ communications under color of law;
5 (3) Section 802 of Title III of the Omnibus Crime Control and
6 Safe Streets Act of 1968, as amended by section 101 of
7 Title I of the Electronic Communications Privacy Act of
8 1986 (ECPA), 18 USC §§ 2511(1)(a), (1)(c), (1)(d) and
9 (3)(a), by illegally intercepting, disclosing, using
10 and/or divulging plaintiffs’ communications;
11
(4) Section 705 of Title VII of the Communications Act of

12
1934, as amended, 47 USC § 605, by unauthorized

13 divulgence and/or publication of plaintiffs’
14 communications;
15 (5) Section 201 of Title II of the ECPA (“Stored
16 Communications Act”), as amended, 18 USC §§ 2702(a)(1)
17 and (a)(2), by illegally divulging the contents of
18 plaintiffs’ communications;
19 (6) Section 201 of the Stored Communications Act, as amended
20 by section 212 of Title II of the USA PATRIOT Act, 18 USC
21 § 2702(a)(3), by illegally divulging records concerning
22 plaintiffs’ communications to a governmental entity and
23 (7) California’s Unfair Competition Law, Cal Bus & Prof Code
24 §§ 17200 et seq, by engaging in unfair, unlawful and
25 deceptive business practices.
26 The complaint seeks certification of a class action and redress
27 through statutory damages, punitive damages, restitution,
28 disgorgement and injunctive and declaratory relief.
2
- ER 237 -
1 On April 5, 2006, plaintiffs moved for a preliminary

2 injunction seeking to enjoin defendants’ allegedly illegal
3 activity. Doc #30 (MPI). Plaintiffs supported their motion by
4 filing under seal three documents, obtained by former AT&T
5 technician Mark Klein, which allegedly demonstrate how AT&T has
6 implemented a warrantless surveillance system on behalf of the NSA
7 at a San Francisco AT&T facility. Doc #31, Exs A-C (the “AT&T
8 documents”). Plaintiffs also filed under seal supporting
9 declarations from Klein (Doc #31) and J Scott Marcus (Doc #32), a
10 putative expert who reviewed the AT&T documents and the Klein
11
declaration.
12
On April 28, 2006, AT&T moved to dismiss this case. Doc

13 #86 (AT&T MTD). AT&T contends that plaintiffs lack standing and
14 were required but failed to plead affirmatively that AT&T did not
15 receive a government certification pursuant to 18 USC §
16 2511(2)(a)(ii)(B). AT&T also contends it is entitled to statutory,
17 common law and qualified immunity.
18 On May 13, 2006, the United States moved to intervene as
19 a defendant and moved for dismissal or, alternatively, for summary
20 judgment based on the state secrets privilege. Doc #124-1 (Gov
21 MTD). The government supported its assertion of the state secrets
22 privilege with public declarations from the Director of National
23 Intelligence, John D Negroponte (Doc #124-2 (Negroponte Decl)), and
24 the Director of the NSA, Keith B Alexander (Doc #124-3 (Alexander
25 Decl), and encouraged the court to review additional classified
26 submissions in camera and ex parte. The government also asserted
27 two statutory privileges under 50 USC § 402 note and 50 USC § 403-
28 1(i)(1).
3
- ER 238 -
1 At a May 17, 2006, hearing, the court requested

2 additional briefing from the parties addressing (1) whether this
3 case could be decided without resolving the state secrets issue,
4 thereby obviating any need for the court to review the government’s
5 classified submissions and (2) whether the state secrets issue is
6 implicated by an FRCP 30(b)(6) deposition request for information
7 about any certification that AT&T may have received from the
8 government authorizing the alleged wiretapping activities. Based
9 on the parties’ submissions, the court concluded in a June 6, 2006,
10 order that this case could not proceed and discovery could not
11
commence until the court examined in camera and ex parte the

12
classified documents to assess whether and to what extent the state

13 secrets privilege applies. Doc #171.
14 After performing this review, the court heard oral
15 argument on the motions to dismiss on June 23, 2006. For the
16 reasons discussed herein, the court DENIES the government’s motion
17 to dismiss and DENIES AT&T’s motion to dismiss.
18
19 I
20 The court first addresses the government’s motion to
21 dismiss or, alternatively, for judgment on state secrets grounds.
22 After exploring the history and principles underlying the state
23 secrets privilege and summarizing the government’s arguments, the
24 court turns to whether the state secrets privilege applies and
25 requires dismissal of this action or immediate entry of judgment in
26 favor of defendants. The court then takes up how the asserted
27 privilege bears on plaintiffs’ discovery request for any government
28 certification that AT&T might have received authorizing the alleged
4
- ER 239 -
1 surveillance activities. Finally, the court addresses the

2 statutory privileges raised by the government.
3
4 A
5 “The state secrets privilege is a common law evidentiary
6 rule that protects information from discovery when disclosure would
7 be inimical to the national security. Although the exact origins
8 of the privilege are not certain, the privilege in this country has
9 its initial roots in Aaron Burr’s trial for treason, and has its
10 modern roots in United States v Reynolds, 345 US 1 (1953).” In re
11
United States, 872 F2d 472, 474-75 (DC Cir 1989) (citations omitted
12
and altered). In his trial for treason, Burr moved for a subpoena
13 duces tecum ordering President Jefferson to produce a letter by
14 General James Wilkinson. United States v Burr, 25 F Cas 30, 32
15 (CCD Va 1807). Responding to the government’s argument “that the
16 letter contains material which ought not to be disclosed,” Chief
17 Justice Marshall riding circuit noted, “What ought to be done under
18 such circumstances presents a delicate question, the discussion of
19 which, it is hoped, will never be rendered necessary in this
20 country.” Id at 37. Although the court issued the subpoena, id at
21 37-38, it noted that if the letter “contain[s] any matter which it
22 would be imprudent to disclose, which it is not the wish of the
23 executive to disclose, such matter, if it be not immediately and
24 essentially applicable to the point, will, of course, be
25 suppressed.” Id at 37.
26 //
27 //
28 //
5
- ER 240 -
1 The actions of another president were at issue in Totten

2 v United States, 92 US 105 (1876), in which the Supreme Court
3 established an important precursor to the modern-day state secrets
4 privilege. In that case, the administrator of a former spy’s
5 estate sued the government based on a contract the spy allegedly
6 made with President Lincoln to recover compensation for espionage
7 services rendered during the Civil War. Id at 105-06. The Totten
8 Court found the action to be barred:
9 The service stipulated by the contract was a secret
service; the information sought was to be obtained
10 clandestinely, and was to be communicated
privately; the employment and the service were to
11
be equally concealed. Both employer and agent must

have understood that the lips of the other were to
12
be for ever sealed respecting the relation of

either to the matter. This condition of the
13 engagement was implied from the nature of the
employment, and is implied in all secret
14 employments of the government in time of war, or
upon matters affecting our foreign relations, where
15 a disclosure of the service might compromise or
embarrass our government in its public duties, or
16 endanger the person or injure the character of the
agent.
17
18 Id at 106, quoted in Tenet v Doe, 544 US 1, 7-8 (2005). Hence,
19 given the secrecy implied in such a contract, the Totten Court
20 “thought it entirely incompatible with the nature of such a
21 contract that a former spy could bring suit to enforce it.” Tenet,
22 544 US at 8. Additionally, the Totten Court observed:
23 It may be stated as a general principle, that
public policy forbids the maintenance of any suit
24 in a court of justice, the trial of which would
inevitably lead to the disclosure of matters which
25 the law itself regards as confidential, and
respecting which it will not allow the confidence
26 to be violated. * * * Much greater reason exists
for the application of the principle to cases of
27 contract for secret services with the government,
as the existence of a contract of that kind is
28 itself a fact not to be disclosed.
6
- ER 241 -
1 Totten, 92 US at 107. Characterizing this aspect of Totten, the

2 Supreme Court has noted, “No matter the clothing in which alleged
3 spies dress their claims, Totten precludes judicial review in cases
4 such as [plaintiffs’] where success depends upon the existence of
5 their secret espionage relationship with the Government.” Tenet,
6 544 US at 8. “Totten’s core concern” is “preventing the existence
7 of the [alleged spy’s] relationship with the Government from being
8 revealed.” Id at 10.
9 In the Cold War era case of Reynolds v United States, 345
10 US 1 (1953), the Supreme Court first articulated the state secrets
11
privilege in its modern form. After a B-29 military aircraft

12
crashed and killed three civilian observers, their widows sued the
13 government under the Federal Tort Claims Act and sought discovery
14 of the Air Force’s official accident investigation. Id at 2-3.
15 The Secretary of the Air Force filed a formal “Claim of Privilege”
16 and the government refused to produce the relevant documents to the
17 court for in camera review. Id at 4-5. The district court deemed
18 as established facts regarding negligence and entered judgment for
19 plaintiffs. Id at 5. The Third Circuit affirmed and the Supreme
20 Court granted certiorari to determine “whether there was a valid
21 claim of privilege under [FRCP 34].” Id at 6. Noting this
22 country’s theretofore limited judicial experience with “the
23 privilege which protects military and state secrets,” the court
24 stated:
25 //
26 //
27 //
28 //
7
- ER 242 -
1
The privilege belongs to the Government and must be
2 asserted by it * * *. It is not to be lightly
invoked. There must be a formal claim of
3 privilege, lodged by the head of the department
which has control over the matter, after actual
4 personal consideration by that officer. The court
itself must determine whether the circumstances are
5 appropriate for the claim of privilege, and yet do
so without forcing a disclosure of the very thing
6 the privilege is designed to protect.
7 Id at 7-8 (footnotes omitted). The latter determination requires a
8 “formula of compromise,” as “[j]udicial control over the evidence
9 in a case cannot be abdicated to the caprice of executive
10 officers,” yet a court may not “automatically require a complete
11
disclosure to the judge before the claim of privilege will be

12
accepted in any case.” Id at 9-10. Striking this balance, the

13 Supreme Court held that the “occasion for the privilege is
14 appropriate” when a court is satisfied “from all the circumstances
15 of the case, that there is a reasonable danger that compulsion of
16 the evidence will expose military matters which, in the interest of
17 national security, should not be divulged.” Id at 10.
18 The degree to which the court may “probe in satisfying
19 itself that the occasion for invoking the privilege is appropriate”
20 turns on “the showing of necessity which is made” by plaintiffs.
21 Id at 11. “Where there is a strong showing of necessity, the claim
22 of privilege should not be lightly accepted, but even the most
23 compelling necessity cannot overcome the claim of privilege if the
24 court is ultimately satisfied that military secrets are at stake.”
25 Id. Finding both a “reasonable danger that the accident
26 investigation report would contain” state secrets and a “dubious
27 showing of necessity,” the court reversed the Third Circuit’s
28 decision and sustained the claim of privilege. Id at 10-12.
8
- ER 243 -
1 In Halkin v Helms, 598 F2d 1 (DC Cir 1978) (Halkin I),

2 the District of Columbia Circuit applied the principles enunciated
3 in Reynolds in an action alleging illegal NSA wiretapping. Former
4 Vietnam War protestors contended that “the NSA conducted
5 warrantless interceptions of their international wire, cable and
6 telephone communications” at the request of various federal
7 defendants and with the cooperation of telecommunications
8 providers. Id at 3. Plaintiffs challenged two separate NSA
9 operations: operation MINARET, which was “part of [NSA’s] regular
10 signals intelligence activity in which foreign electronic signals
11
were monitored,” and operation SHAMROCK, which involved “processing

12
of all telegraphic traffic leaving or entering the United States.”

13 Id at 4.
14 The government moved to dismiss on state secrets grounds,
15 arguing that civil discovery would impermissibly “(1) confirm the
16 identity of individuals or organizations whose foreign
17 communications were acquired by NSA, (2) disclose the dates and
18 contents of such communications, or (3) divulge the methods and
19 techniques by which the communications were acquired by NSA.” Id
20 at 4-5. After plaintiffs “succeeded in obtaining a limited amount
21 of discovery,” the district court concluded that plaintiffs’ claims
22 challenging operation MINARET could not proceed because “the
23 ultimate issue, the fact of acquisition, could neither be admitted
24 nor denied.” Id at 5. The court denied the government’s motion to
25 dismiss on claims challenging operation SHAMROCK because the court
26 “thought congressional committees investigating intelligence
27 matters had revealed so much information about SHAMROCK that such a
28 disclosure would pose no threat to the NSA mission.” Id at 10.
9
- ER 244 -
1 On certified appeal, the District of Columbia Circuit

2 noted that even “seemingly innocuous” information is privileged if
3 that information is part of a classified “mosaic” that “can be
4 analyzed and fitted into place to reveal with startling clarity how
5 the unseen whole must operate.” Id at 8. The court affirmed
6 dismissal of the claims related to operation MINARET but reversed
7 the district court’s rejection of the privilege as to operation
8 SHAMROCK, reasoning that “confirmation or denial that a particular
9 plaintiff's communications have been acquired would disclose NSA
10 capabilities and other valuable intelligence information to a
11
sophisticated intelligence analyst.” Id at 10. On remand, the

12
district court dismissed plaintiffs’ claims against the NSA and

13 individuals connected with the NSA’s alleged monitoring.
14 Plaintiffs were left with claims against the Central Intelligence
15 Agency (CIA) and individuals who had allegedly submitted watchlists
16 to the NSA on the presumption that the submission resulted in
17 interception of plaintiffs’ communications. The district court
18 eventually dismissed the CIA-related claims as well on state
19 secrets grounds and the case went up again to the court of appeals.
20 The District of Columbia Circuit stated that the state
21 secrets inquiry “is not a balancing of ultimate interests at stake
22 in the litigation,” but rather “whether the showing of the harm
23 that might reasonably be seen to flow from disclosure is adequate
24 in a given case to trigger the absolute right to withhold the
25 information sought in that case.” Halkin v Helms, 690 F2d 977, 990
26 (DC Cir 1982) (Halkin II). The court then affirmed dismissal of
27 “the claims for injunctive and declaratory relief against the CIA
28 defendants based upon their submission of plaintiffs’ names on
10
- ER 245 -
1 ‘watchlists’ to NSA.” Id at 997 (emphasis omitted). The court

2 found that plaintiffs lacked standing given the court’s “ruling in
3 Halkin I that evidence of the fact of acquisition of plaintiffs’
4 communications by NSA cannot be obtained from the government, nor
5 can such fact be presumed from the submission of watchlists to that
6 Agency.” Id at 999 (emphasis omitted).
7 In Ellsberg v Mitchell, 709 F2d 51 (DC Cir 1983), the
8 District of Columbia Circuit addressed the state secrets privilege
9 in another wiretapping case. Former defendants and attorneys in
10 the “Pentagon Papers” criminal prosecution sued individuals who
11
allegedly were responsible for conducting warrantless electronic

12
surveillance. Id at 52-53. In response to plaintiffs’

13 interrogatories, defendants admitted to two wiretaps but refused to
14 answer other questions on the ground that the requested information
15 was privileged. Id at 53. The district court sustained the
16 government’s formal assertion of the state secrets privilege and
17 dismissed plaintiffs’ claims pertaining to foreign communications
18 surveillance. Id at 56.
19 On appeal, the District of Columbia Circuit noted that
20 “whenever possible, sensitive information must be disentangled from
21 nonsensitive information to allow for the release of the latter.”
22 Id at 57. The court generally affirmed the district court’s
23 decisions regarding the privilege, finding “a ‘reasonable danger’
24 that revelation of the information in question would either enable
25 a sophisticated analyst to gain insights into the nation’s
26 intelligence-gathering methods and capabilities or would disrupt
27 diplomatic relations with foreign governments.” Id at 59. The
28 court disagreed with the district court’s decision that the
11
- ER 246 -
1 privilege precluded discovery of the names of the attorneys general

2 that authorized the surveillance. Id at 60.
3 Additionally, responding to plaintiffs’ argument that the
4 district court should have required the government to disclose more
5 fully its basis for asserting the privilege, the court recognized
6 that “procedural innovation” was within the district court’s
7 discretion and noted that “[t]he government’s public statement need
8 be no more (and no less) specific than is practicable under the
9 circumstances.” Id at 64.
10 In considering the effect of the privilege, the court
11
affirmed dismissal “with regard to those [individuals] whom the

12
government ha[d] not admitted overhearing.” Id at 65. But the

13 court did not dismiss the claims relating to the wiretaps that the
14 government had conceded, noting that there was no reason to
15 “suspend the general rule that the burden is on those seeking an
16 exemption from the Fourth Amendment warrant requirement to show the
17 need for it.” Id at 68.
18 In Kasza v Browner, 133 F3d 1159 (9th Cir 1998), the
19 Ninth Circuit issued its definitive opinion on the state secrets
20 privilege. Former employees at a classified United States Air
21 Force facility brought a citizen suit under the Resource
22 Conservation and Recovery Act (RCRA), 42 USC § 6972, alleging the
23 Air Force violated that act. Id at 1162. The district court
24 granted summary judgment against plaintiffs, finding discovery of
25 information related to chemical inventories impossible due to the
26 state secrets privilege. Id. On appeal, plaintiffs argued that an
27 exemption in the RCRA preempted the state secrets privilege and
28 even if not preempted, the privilege was improperly asserted and
12
- ER 247 -
1 too broadly applied. Id at 1167-69. After characterizing the

2 state secrets privilege as a matter of federal common law, the
3 Ninth Circuit recognized that “statutes which invade the common law
4 * * * are to be read with a presumption favoring the retention of
5 long-established and familiar principles, except when a statutory
6 purpose to the contrary is evident.” Id at 1167 (omissions in
7 original) (citations omitted). Finding no such purpose, the court
8 held that the statutory exemption did not preempt the state secrets
9 privilege. Id at 1168.
10 Kasza also explained that the state secrets privilege can
11
require dismissal of a case in three distinct ways. “First, by

12
invoking the privilege over particular evidence, the evidence is

13 completely removed from the case. The plaintiff’s case then goes
14 forward based on evidence not covered by the privilege. * * * If,
15 after further proceedings, the plaintiff cannot prove the prima
16 facie elements of her claim with nonprivileged evidence, then the
17 court may dismiss her claim as it would with any plaintiff who
18 cannot prove her case.” Id at 1166. Second, “if the privilege
19 deprives the defendant of information that would otherwise give the
20 defendant a valid defense to the claim, then the court may grant
21 summary judgment to the defendant.” Id (internal quotation
22 omitted) (emphasis in original). Finally, and most relevant here,
23 “notwithstanding the plaintiff’s ability to produce nonprivileged
24 evidence, if the ‘very subject matter of the action’ is a state
25 secret, then the court should dismiss the plaintiff’s action based
26 solely on the invocation of the state secrets privilege.” Id
27 (quoting Reynolds, 345 US at 11 n26). See also Reynolds, 345 US at
28 11 n26 (characterizing Totten as a case “where the very subject
13
- ER 248 -
1 matter of the action, a contract to perform espionage, was a matter

2 of state secret. The action was dismissed on the pleadings without
3 ever reaching the question of evidence, since it was so obvious
4 that the action should never prevail over the privilege.”).
5 According the “utmost deference” to the government’s
6 claim of privilege and noting that even “seemingly innocuous
7 information” could be “part of a classified mosaic,” id at 1166,
8 Kasza concluded after in camera review of classified declarations
9 “that release of such information would reasonably endanger
10 national security interests.” Id at 1170. Because “no protective
11
procedure” could salvage plaintiffs’ case, and “the very subject

12
matter of [her] action [was] a state secret,” the court affirmed

13 dismissal. Id.
14 More recently, in Tenet v Doe, 544 US 1 (2005), the
15 Supreme Court reaffirmed Totten, holding that an alleged former
16 Cold War spy could not sue the government to enforce its
17 obligations under a covert espionage agreement. Id at 3.
18 Importantly, the Court held that Reynolds did not “replac[e] the
19 categorical Totten bar with the balancing of the state secrets
20 evidentiary privilege in the distinct class of cases that depend
21 upon clandestine spy relationships.” Id at 9-10.
22 Even more recently, in El-Masri v Tenet, 2006 WL 1391390,
23 05-cv-01417 (ED Va May 12, 2006), plaintiff sued the former
24 director of the CIA and private corporations involved in a program
25 of “extraordinary rendition,” pursuant to which plaintiff was
26 allegedly beaten, tortured and imprisoned because the government
27 mistakenly believed he was affiliated with the al Qaeda terrorist
28 organization. Id at *1-2. The government intervened “to protect
14
- ER 249 -
1 its interests in preserving state secrets.” Id at *3. The court

2 sustained the government’s assertion of the privilege:
3 [T]he substance of El-Masri’s publicly available
complaint alleges a clandestine intelligence
4 program, and the means and methods the foreign
intelligence services of this and other countries
5 used to carry out the program. And, as the public
declaration makes pellucidly clear, any admission
6 or denial of these allegations by defendants * * *
would present a grave risk of injury to national
7 security.
8 Id at *5. The court also rejected plaintiff’s argument “that
9 government officials’ public affirmation of the existence” of the
10 rendition program somehow undercut the claim of privilege because
11
the government’s general admission provided “no details as to the

12
[program’s] means and methods,” which were “validly claimed as

13 state secrets.” Id. Having validated the exercise of privilege,
14 the court reasoned that dismissal was required because “any answer
15 to the complaint by the defendants risk[ed] the disclosure of
16 specific details [of the program]” and special discovery procedures
17 would have been “plainly ineffective where, as here, the entire aim
18 of the suit [was] to prove the existence of state secrets.” Id at
19 *6.
20
21 B
22 Relying on Kasza, the government advances three reasons
23 why the state secrets privilege requires dismissing this action or
24 granting summary judgment for AT&T: (1) the very subject matter of
25 this case is a state secret; (2) plaintiffs cannot make a prima
26 facie case for their claims without classified evidence and (3) the
27 privilege effectively deprives AT&T of information necessary to
28 raise valid defenses. Doc #245-1 (Gov Reply) at 3-5.
15
- ER 250 -
1 In support of its contention that the very subject matter

2 of this action is a state secret, the government argues: “AT&T
3 cannot even confirm or deny the key factual premise underlying
4 [p]laintiffs’ entire case —– that AT&T has provided any assistance
5 whatsoever to NSA regarding foreign-intelligence surveillance.
6 Indeed, in the formulation of Reynolds and Kasza, that allegation
7 is ‘the very subject of the action.’” Id at 4-5.
8 Additionally, the government claims that dismissal is
9 appropriate because plaintiffs cannot establish a prima facie case
10 for their claims. Contending that plaintiffs “persistently confuse
11
speculative allegations and untested assertions for established

12
facts,” the government attacks the Klein and Marcus declarations

13 and the various media reports that plaintiffs rely on to
14 demonstrate standing. Id at 4. The government also argues that
15 “[e]ven when alleged facts have been the ‘subject of widespread
16 media and public speculation’ based on ‘[u]nofficial leaks and
17 public surmise,’ those alleged facts are not actually established
18 in the public domain.” Id at 8 (quoting Afshar v Dept of State,
19 702 F2d 1125, 1130-31 (DC Cir 1983)).
20 The government further contends that its “privilege
21 assertion covers any information tending to confirm or deny (a) the
22 alleged intelligence activities, (b) whether AT&T was involved with
23 any such activity, and (c) whether a particular individual’s
24 communications were intercepted as a result of any such activity.”
25 Gov MTD at 17-18. The government reasons that “[w]ithout these
26 facts * * * [p]laintiffs ultimately will not be able to prove
27 injury-in-fact and causation,” thereby justifying dismissal of this
28 action for lack of standing. Id at 18.
16
- ER 251 -
1 The government also notes that plaintiffs do not fall

2 within the scope of the publicly disclosed “terrorist surveillance
3 program” (see infra I(C)(1)) because “[p]laintiffs do not claim to
4 be, or to communicate with, members or affiliates of [the] al Qaeda
5 [terrorist organization] —– indeed, [p]laintiffs expressly exclude
6 from their purported class any foreign powers or agent of foreign
7 powers * * *.” Id at 18 n9 (citing FAC, ¶ 70). Hence, the
8 government concludes the named plaintiffs “are in no different
9 position from any other citizen or AT&T subscriber who falls
10 outside the narrow scope of the [terrorist surveillance program]
11
but nonetheless disagrees with the program.” Id (emphasis in

12
original).
13 Additionally, the government contends that plaintiffs’
14 Fourth Amendment claim fails because no warrant is required for the
15 alleged searches. In particular, the government contends that the
16 executive has inherent constitutional authority to conduct
17 warrantless searches for foreign intelligence purposes, id at 24
18 (citing In re Sealed Case, 310 F3d 717, 742 (For Intel Surv Ct of
19 Rev 2002)), and that the warrant requirement does not apply here
20 because this case involves “special needs” that go beyond a routine
21 interest in law enforcement, id at 26. Accordingly, to make a
22 prima facie case, the government asserts that plaintiffs would have
23 to demonstrate that the alleged searches were unreasonable, which
24 would require a fact-intensive inquiry that the government contends
25 plaintiffs could not perform because of the asserted privilege. Id
26 at 26-27.
27 //
28 //
17
- ER 252 -
1 The government also argues that plaintiffs cannot

2 establish a prima facie case for their statutory claims because
3 plaintiffs must prove “that any alleged interception or disclosure
4 was not authorized by the Government.” The government maintains
5 that “[p]laintiffs bear the burden of alleging and proving the lack
6 of such authorization,” id at 21-22, and that they cannot meet that
7 burden because “information confirming or denying AT&T’s
8 involvement in alleged intelligence activities is covered by the
9 state secrets assertion.” Id at 23.
10 Because “the existence or non-existence of any
11
certification or authorization by the Government relating to any

12
AT&T activity would be information tending to confirm or deny

13 AT&T’s involvement in any alleged intelligence activity,” Doc #145-
14 1 (Gov 5/17/06 Br) at 17, the government contends that its state
15 secrets assertion precludes AT&T from “present[ing] the facts that
16 would constitute its defenses.” Gov Reply at 1. Accordingly, the
17 government also argues that the court could grant summary judgment
18 in favor of AT&T on that basis.
19
20 C
21 The first step in determining whether a piece of
22 information constitutes a “state secret” is determining whether
23 that information actually is a “secret.” Hence, before analyzing
24 the application of the state secrets privilege to plaintiffs’
25 claims, the court summarizes what has been publicly disclosed about
26 NSA surveillance programs as well as the AT&T documents and
27 accompanying Klein and Marcus declarations.
28 //
18
- ER 253 -
1 1
2 Within the last year, public reports have surfaced on at
3 least two different types of alleged NSA surveillance programs,
4 neither of which relies on warrants. The New York Times disclosed
5 the first such program on December 16, 2005. Doc #19 (Cohn Decl),
6 Ex J (James Risen and Eric Lichtblau, Bush Lets US Spy on Callers
7 Without Courts, The New York Times (Dec 16, 2005)). The following
8 day, President George W Bush confirmed the existence of a
9 “terrorist surveillance program” in his weekly radio address:
10 In the weeks following the [September 11, 2001]
terrorist attacks on our Nation, I authorized the
11
National Security Agency, consistent with US law

and the Constitution, to intercept the
12
international communications of people with known

links to Al Qaeda and related terrorist
13 organizations. Before we intercept these
communications, the Government must have
14 information that establishes a clear link to these
terrorist networks.
15
16 Doc #20 (Pl Request for Judicial Notice), Ex 1 at 2, available at
17 http://www.whitehouse.gov/news/releases/2005/12/print/20051217.html
18 (last visited July 19, 2006). The President also described the
19 mechanism by which the program is authorized and reviewed:
20 The activities I authorized are reviewed
approximately every 45 days. Each review is based
21 on a fresh intelligence assessment of terrorist
threats to the continuity of our Government and the
22 threat of catastrophic damage to our homeland.
During each assessment, previous activities under
23 the authorization are reviewed. The review
includes approval by our Nation’s top legal
24 officials, including the Attorney General and the
Counsel to the President. I have reauthorized this
25 program more than 30 times since the September the
11th attacks, and I intend to do so for as long as
26 our Nation faces a continuing threat from Al Qaeda
and related groups.
27 //
28 //
19
- ER 254 -
1 The NSA’s activities under this authorization are

throughly reviewed by the Justice Department and
2 NSA’s top legal officials, including NSA’s General
Counsel and Inspector General. Leaders in Congress
3 have been briefed more than a dozen times on this
authorization and the activities conducted under
4 it. Intelligence officials involved in this
activity also receive extensive training to ensure
5 they perform their duties consistent with the
letter and intent of the authorization.
6
Id.
7
Attorney General Alberto Gonzales subsequently confirmed
8
that this program intercepts “contents of communications where * * *
9
one party to the communication is outside the United States” and
10
the government has “a reasonable basis to conclude that one party
11
to the communication is a member of al Qaeda, affiliated with al

12
Qaeda, or a member of an organization affiliated with al Qaeda, or

13
working in support of al Qaeda.” Doc #87 (AT&T Request for
14
Judicial Notice), Ex J at 1 (hereinafter “12/19/05 Press
15
Briefing”), available at http://www.whitehouse.gov/news/releases/
16
2005/12/print/20051219-1.html (last visited July 19, 2005). The
17
Attorney General also noted, “This [program] is not about
18
wiretapping everyone. This is a very concentrated, very limited
19
program focused at gaining information about our enemy.” Id at 5.
20
The President has also made a public statement, of which the court
21
takes judicial notice, that the government’s “international
22
activities strictly target al Qaeda and their known affiliates,”
23
“the government does not listen to domestic phone calls without
24
court approval” and the government is “not mining or trolling
25
through the personal lives of millions of innocent Americans.” The
26
White House, President Bush Discusses NSA Surveillance Program (May
27
11, 2006) (hereinafter “5/11/06 Statement”), http://www.whitehouse.
28
20
- ER 255 -
1 gov/news/releases/2006/05/20060511-1.html (last visited July 19,

2 2005).
3 On May 11, 2006, USA Today reported the existence of a
4 second NSA program in which BellSouth Corp, Verizon Communications
5 Inc and AT&T were alleged to have provided telephone calling
6 records of tens of millions of Americans to the NSA. Doc #182
7 (Markman Decl), Ex 5 at 1 (Leslie Cauley, NSA Has Massive Database
8 of Americans’ Phone Calls, USA Today (May 11, 2006)). The article
9 did not allege that the NSA listens to or records conversations but
10 rather that BellSouth, Verizon and AT&T gave the government access
11
to a database of domestic communication records that the NSA uses

12
“to analyze calling patterns in an effort to detect terrorist

13 activity.” Id. The report indicated a fourth telecommunications
14 company, Qwest Communications International Inc, declined to
15 participate in the program. Id at 2. An attorney for Qwest’s
16 former CEO, Joseph Nacchio, issued the following statement:
17 In the Fall of 2001 * * * while Mr Nacchio was
Chairman and CEO of Qwest and was serving pursuant
18 to the President’s appointment as the Chairman of
the National Security Telecommunications Advisory
19 Committee, Qwest was approached to permit the
Government access to the private telephone records
20 of Qwest customers.
21 Mr Nacchio made inquiry as to whether a warrant or
other legal process had been secured in support of
22 that request. When he learned that no such
authority had been granted and that there was a
23 disinclination on the part of the authorities to
use any legal process, including the Special Court
24 which had been established to handle such matters,
Mr Nacchio concluded that these requests violated
25 the privacy requirements of the Telecommications
[sic] Act. Accordingly, Mr Nacchio issued
26 instructions to refuse to comply with these
requests. These requests continued throughout Mr
27 Nacchio’s tenure and until his departure in June of
2002.
28
21
- ER 256 -
1 Markman Decl, Ex 6.
2 BellSouth and Verizon both issued statements, of which
3 the court takes judicial notice, denying their involvement in the
4 program described in USA Today. BellSouth stated in relevant part:
5 As a result of media reports that BellSouth
provided massive amounts of customer calling
6 information under a contract with the NSA, the
Company conducted an internal review to determine
7 the facts. Based on our review to date, we have
confirmed no such contract exists and we have not
8 provided bulk customer calling records to the NSA.
9 News Release, BellSouth Statement on Governmental Data Collection
10 (May 15, 2006), available at http://bellsouth.mediaroom.com/
11
index.php?s=press_releases&item=2860 (last visited July 19, 2006).

12
Although declining to confirm or deny whether it had any

13 relationship to the NSA program acknowledged by the President,
14 Verizon stated in relevant part:
15 One of the most glaring and repeated falsehoods in
the media reporting is the assertion that, in the
16 aftermath of the 9/11 attacks, Verizon was
approached by NSA and entered into an arrangement
17 to provide the NSA with data from its customers’
domestic calls.
18
This is false. From the time of the 9/11 attacks
19 until just four months ago, Verizon had three major
businesses - its wireline phone business, its
20 wireless company and its directory publishing
business. It also had its own Internet Service
21 Provider and long-distance businesses. Contrary to
the media reports, Verizon was not asked by NSA to
22 provide, nor did Verizon provide, customer phone
records from any of these businesses, or any call
23 data from those records. None of these companies
—– wireless or wireline —– provided customer
24 records or call data.
25 See News Release, Verizon Issues Statement on NSA Media Coverage
26 (May 16, 2006), available at http://newscenter.verizon.com/
27 proactive/newsroom/release.vtml?id=93450 (last visited July 19,
28 2006). BellSouth and Verizon’s denials have been at least somewhat
22
- ER 257 -
1 substantiated in later reports. Doc #298 (DiMuzio Decl), Ex 1

2 (Lawmakers: NSA Database Incomplete, USA Today (June 30, 2006)).
3 Neither AT&T nor the government has confirmed or denied the
4 existence of a program of providing telephone calling records to
5 the NSA. Id.
6
7 2
8 Although the government does not claim that the AT&T
9 documents obtained by Mark Klein or the accompanying declarations
10 contain classified information (Doc #284 (6/23/06 Transcript) at
11
76:9-20), those papers remain under seal because AT&T alleges that
12
they contain proprietary and trade secret information.

13 Nonetheless, much of the information in these papers has already
14 been leaked to the public or has been revealed in redacted versions
15 of the papers. The summary below is based on those already
16 disclosed facts.
17 In a public statement, Klein explained that while working
18 at an AT&T office in San Francisco in 2002, “the site manager told
19 me to expect a visit from a National Security Agency agent, who was
20 to interview a management-level technician for a special job.” Doc
21 #43 (Ericson Decl), Ex J at 1. While touring the Folsom Street
22 AT&T facility in January 2003, Klein “saw a new room being built
23 adjacent to the 4ESS switch room where the public’s phone calls are
24 routed” and “learned that the person whom the NSA interviewed for
25 the secret job was the person working to install equipment in this
26 room.” Id. See also Doc #147 (Redact Klein Decl), ¶ 10 (“The NSA
27 agent came and met with [Field Support Specialist (FSS)] #2. FSS
28 #1 later confirmed to me that FSS #2 was working on the special
23
- ER 258 -
1 job.”); id, ¶ 16 (“In the Fall of 2003, FSS #1 told me that another
2 NSA agent would again visit our office * * * to talk to FSS #1 in
3 order to get the latter’s evaluation of FSS #3’s suitability to
4 perform the special job that FSS #2 had been doing. The NSA agent
5 did come and speak to FSS #1.”).
6 Klein then learned about the AT&T documents in October
7 2003, after being transferred to the Folsom Street facility to
8 oversee the Worldnet Internet room. Ericson Decl, Ex J at 2. One
9 document described how “fiber optic cables from the secret room
10 were tapping into the Worldnet circuits by splitting off a portion
11
of the light signal.” Id. The other two documents “instructed

12
technicians on connecting some of the already in-service circuits

13 to [a] ‘splitter’ cabinet, which diverts some of the light signal
14 to the secret room.” Id. Klein noted the secret room contained “a
15 Narus STA 6400” and that “Narus STA technology is known to be used
16 particularly by government intelligence agencies because of its
17 ability to sift through large amounts of data looking for
18 preprogrammed targets.” Id. Klein also “learned that other such
19 ‘splitter’ cabinets were being installed in other cities, including
20 Seattle, San Jose, Los Angeles and San Diego.” Id.
21
22 D
23 Based on the foregoing, it might appear that none of the
24 subject matter in this litigation could be considered a secret
25 given that the alleged surveillance programs have been so widely
26 reported in the media.
27 //
28 //
24
- ER 259 -
1 The court recognizes, however, that simply because a

2 factual statement has been publicly made does not necessarily mean
3 that the facts it relates are true and are not a secret. The
4 statement also must come from a reliable source. Indeed, given the
5 sheer amount of statements that have been made in the public sphere
6 about the alleged surveillance programs and the limited number of
7 permutations that such programs could take, it would seem likely
8 that the truth about these programs has already been publicly
9 reported somewhere. But simply because such statements have been
10 publicly made does not mean that the truth of those statements is a
11
matter of general public knowledge and that verification of the

12
statement is harmless.
13 In determining whether a factual statement is a secret
14 for purposes of the state secrets privilege, the court should look
15 only at publicly reported information that possesses substantial
16 indicia of reliability and whose verification or substantiation
17 possesses the potential to endanger national security. That
18 entails assessing the value of the information to an individual or
19 group bent on threatening the security of the country, as well as
20 the secrecy of the information.
21 For instance, if this litigation verifies that AT&T
22 assists the government in monitoring communication records, a
23 terrorist might well cease using AT&T and switch to other, less
24 detectable forms of communication. Alternatively, if this
25 litigation reveals that the communication records program does not
26 exist, then a terrorist who had been avoiding AT&T might start
27 using AT&T if it is a more efficient form of communication. In
28 short, when deciding what communications channel to use, a
25
- ER 260 -
1 terrorist “balanc[es] the risk that a particular method of

2 communication will be intercepted against the operational
3 inefficiencies of having to use ever more elaborate ways to
4 circumvent what he thinks may be intercepted.” 6/23/06 Transcript
5 at 48:14-17 (government attorney). A terrorist who operates with
6 full information is able to communicate more securely and more
7 efficiently than a terrorist who operates in an atmosphere of
8 uncertainty.
9 It is, of course, an open question whether individuals
10 inclined to commit acts threatening the national security engage in
11
such calculations. But the court is hardly in a position to

12
second-guess the government’s assertions on this matter or to

13 estimate the risk tolerances of terrorists in making their
14 communications and hence at this point in the litigation eschews
15 the attempt to weigh the value of the information.
16 Accordingly, in determining whether a factual statement
17 is a secret, the court considers only public admissions or denials
18 by the government, AT&T and other telecommunications companies,
19 which are the parties indisputably situated to disclose whether and
20 to what extent the alleged programs exist. In determining what is
21 a secret, the court at present refrains from relying on the
22 declaration of Mark Klein. Although AT&T does not dispute that
23 Klein was a former AT&T technician and he has publicly declared
24 under oath that he observed AT&T assisting the NSA in some capacity
25 and his assertions would appear admissible in connection with the
26 present motions, the inferences Klein draws have been disputed. To
27 accept the Klein declaration at this juncture in connection with
28 the state secrets issue would invite attempts to undermine the
26
- ER 261 -
1 privilege by mere assertions of knowledge by an interested party.

2 Needless to say, this does not reflect that the court discounts
3 Klein’s credibility, but simply that what is or is not secret
4 depends on what the government and its alleged operative AT&T and
5 other telecommunications providers have either admitted or denied
6 or is beyond reasonable dispute.
7 Likewise, the court does not rely on media reports about
8 the alleged NSA programs because their reliability is unclear. To
9 illustrate, after Verizon and BellSouth denied involvement in the
10 program described in USA Today in which communication records are
11
monitored, USA Today published a subsequent story somewhat backing

12
down from its earlier statements and at least in some measure

13 substantiating these companies’ denials. See supra I(C)(1).
14 Finally, the court notes in determining whether the
15 privilege applies, the court is not limited to considering strictly
16 admissible evidence. FRE 104(a) (“Preliminary questions concerning
17 * * * the existence of a privilege * * * shall be determined by the
18 court, subject to the provisions of subdivision (b). In making its
19 determination it is not bound by the rules of evidence except those
20 with respect to privileges.”). This makes sense: the issue at bar
21 is not proving a question of liability but rather determining
22 whether information that the government contends is a secret is
23 actually a secret. In making this determination, the court may
24 rely upon reliable public evidence that might otherwise be
25 inadmissible at trial because it does not comply with the technical
26 requirements of the rules of evidence.
27 With these considerations in mind, the court at last
28 determines whether the state secrets privilege applies here.
27
- ER 262 -
1 E
2 Because this case involves an alleged covert relationship
3 between the government and AT&T, the court first determines whether
4 to apply the categorical bar to suit established by the Supreme
5 Court in Totten v United States, 92 US 105 (1875), acknowledged in
6 United States v Reynolds, 345 US 1 (1953) and Kasza v Browner, 133
7 F3d 1159 (9th Cir 1998), and reaffirmed in Tenet v Doe, 544 US 1
8 (2005). See id at 6 (“[A]pplication of the Totten rule of
9 dismissal * * * represents the sort of ‘threshold question’ we have
10 recognized may be resolved before addressing jurisdiction.”). The
11
court then examines the closely related questions whether this

12
action must be presently dismissed because “the very subject matter

13 of the action” is a state secret or because the state secrets
14 privilege necessarily blocks evidence essential to plaintiffs’
15 prima facie case or AT&T’s defense. See Kasza, 133 F3d at 1166-67.
16
17 1
18 Although the principles announced in Totten, Tenet,
19 Reynolds and Kasza inform the court’s decision here, those cases
20 are not strictly analogous to the facts at bar.
21 First, the instant plaintiffs were not a party to the
22 alleged covert arrangement at issue here between AT&T and the
23 government. Hence, Totten and Tenet are not on point to the extent
24 they hold that former spies cannot enforce agreements with the
25 government because the parties implicitly agreed that such suits
26 would be barred. The implicit notion in Totten was one of
27 equitable estoppel: one who agrees to conduct covert operations
28 impliedly agrees not to reveal the agreement even if the agreement
28
- ER 263 -
1 is breached. But AT&T, the alleged spy, is not the plaintiff here.
2 In this case, plaintiffs made no agreement with the government and
3 are not bound by any implied covenant of secrecy.
4 More importantly, unlike the clandestine spy arrangements
5 in Tenet and Totten, AT&T and the government have for all practical
6 purposes already disclosed that AT&T assists the government in
7 monitoring communication content. As noted earlier, the government
8 has publicly admitted the existence of a “terrorist surveillance
9 program,” which the government insists is completely legal. This
10 program operates without warrants and targets “contents of
11
communications where * * * one party to the communication is

12
outside the United States” and the government has “a reasonable

13 basis to conclude that one party to the communication is a member
14 of al Qaeda, affiliated with al Qaeda, or a member of an
15 organization affiliated with al Qaeda, or working in support of al
16 Qaeda.” 12/19/05 Press Briefing at 1.
17 Given that the “terrorist surveillance program” tracks
18 “calls into the United States or out of the United States,” 5/11/06
19 Statement, it is inconceivable that this program could exist
20 without the acquiescence and cooperation of some telecommunications
21 provider. Although of record here only in plaintiffs’ pleading, it
22 is beyond reasonable dispute that “prior to its being acquired by
23 SBC, AT&T Corp was the second largest Internet provider in the
24 country,” FAC, ¶ 26, and “AT&T Corp’s bundled local and long
25 distance service was available in 46 states, covering more than 73
26 million households,” id, ¶ 25. AT&T’s assistance would greatly
27 help the government implement this program. See also id, ¶ 27
28 (“The new AT&T Inc constitutes the largest telecommunications
29
- ER 264 -
1 provider in the United States and one of the largest in the

2 world.”). Considering the ubiquity of AT&T telecommunications
3 services, it is unclear whether this program could even exist
4 without AT&T’s acquiescence and cooperation.
5 Moreover, AT&T’s history of cooperating with the
6 government on such matters is well known. AT&T has recently
7 disclosed that it “performs various classified contracts, and
8 thousands of its employees hold government security clearances.”
9 FAC, ¶ 29. More recently, in response to reports on the alleged
10 NSA programs, AT&T has disclosed in various statements, of which
11
the court takes judicial notice, that it has “an obligation to

12
assist law enforcement and other government agencies responsible

13 for protecting the public welfare, whether it be an individual or
14 the security interests of the entire nation. * * * If and when
15 AT&T is asked to help, we do so strictly within the law and under
16 the most stringent conditions.” News Release, AT&T Statement on
17 Privacy and Legal/Security Issues (May 11, 2006) (emphasis added),
18 available at http://www.sbc.com/gen/press-room?pid=4800&cdvn=news
19 &newsarticleid=22285. See also Declan McCullagh, CNET News.com,
20 Legal Loophole Emerges in NSA Spy Program (May 19, 2006) (“Mark
21 Bien, a spokesman for AT&T, told CNET News.com on Wednesday:
22 ‘Without commenting on or confirming the existence of the program,
23 we can say that when the government asks for our help in protecting
24 national security, and the request is within the law, we will
25 provide that assistance.’”), available at http://news.com.com/
26 Legal+loophole+emerges+in+NSA+spy+program/2100-1028_3-6073600.html;
27 Justin Scheck, Plaintiffs Can Keep AT&T Papers in Domestic Spying
28 Case, The Recorder (May 18, 2006) (“Marc Bien, a spokesman for
30
- ER 265 -
1 AT&T, said he didn’t see a settlement on the horizon. ‘When the

2 government asks for our help in protecting American security, and
3 the request is within the law, we provide assistance,’ he said.”),
4 available at http://www.law.com/jsp/article.jsp?id=1147856734796.
5 And AT&T at least presently believes that any such assistance would
6 be legal if AT&T were simply a passive agent of the government or
7 if AT&T received a government certification authorizing the
8 assistance. 6/23/06 Transcript at 15:11-21:19. Hence, it appears
9 AT&T helps the government in classified matters when asked and AT&T
10 at least currently believes, on the facts as alleged in plaintiffs’
11
complaint, its assistance is legal.

12
In sum, the government has disclosed the general contours

13 of the “terrorist surveillance program,” which requires the
14 assistance of a telecommunications provider, and AT&T claims that
15 it lawfully and dutifully assists the government in classified
16 matters when asked.
17 A remaining question is whether, in implementing the
18 “terrorist surveillance program,” the government ever requested the
19 assistance of AT&T, described in these proceedings as the mother of
20 telecommunications “that in a very literal way goes all the way
21 back to Alexander Graham Bell summoning his assistant Watson into
22 the room.” Id at 102:11-13. AT&T’s assistance in national
23 security surveillance is hardly the kind of “secret” that the
24 Totten bar and the state secrets privilege were intended to protect
25 or that a potential terrorist would fail to anticipate.
26 //
27 //
28 //
31
- ER 266 -
1 The court’s conclusion here follows the path set in

2 Halkin v Helms and Ellsberg v Mitchell, the two cases most
3 factually similar to the present. The Halkin and Ellsberg courts
4 did not preclude suit because of a Totten-based implied covenant of
5 silence. Although the courts eventually terminated some or all of
6 plaintiffs’ claims because the privilege barred discovery of
7 certain evidence (Halkin I, 598 F2d at 10; Halkin II, 690 F2d at
8 980, 987-88; Ellsberg, 709 F2d at 65), the courts did not dismiss
9 the cases at the outset, as would have been required had the Totten
10 bar applied. Accordingly, the court sees no reason to apply the
11
Totten bar here.

12
For all of the above reasons, the court declines to

13 dismiss this case based on the categorical Totten/Tenet bar.
14
15 2
16 The court must also dismiss this case if “the very
17 subject matter of the action” is a state secret and therefore “any
18 further proceeding * * * would jeopardize national security.”
19 Kasza, 133 F3d at 1170. As a preliminary matter, the court agrees
20 that the government has satisfied the three threshold requirements
21 for properly asserting the state secrets privilege: (1) the head
22 of the relevant department, Director of National Intelligence John
23 D Negroponte (2) has lodged a formal claim of privilege (Negroponte
24 Decl, ¶¶ 9, 13) (3) after personally considering the matter (Id, ¶¶
25 2, 9, 13). Moreover, the Director of the NSA, Lieutenant General
26 Keith B Alexander, has filed a declaration supporting Director
27 Negroponte’s assertion of the privilege. Alexander Decl, ¶¶ 2, 9.
28 //
32
- ER 267 -
1 The court does not “balanc[e the] ultimate interests at

2 stake in the litigation.” Halkin II, 690 F2d at 990. But no case
3 dismissed because its “very subject matter” was a state secret
4 involved ongoing, widespread violations of individual
5 constitutional rights, as plaintiffs allege here. Indeed, most
6 cases in which the “very subject matter” was a state secret
7 involved classified details about either a highly technical
8 invention or a covert espionage relationship. See, e g, Sterling v
9 Tenet, 416 F3d 338, 348 (4th Cir 2005) (dismissing Title VII racial
10 discrimination claim that “center[ed] around a covert agent’s
11
assignments, evaluations, and colleagues”); Kasza, 133 F3d at 1162-

12
63, 1170 (dismissing RCRA claim regarding facility reporting and

13 inventory requirements at a classified Air Force location near
14 Groom Lake, Nevada); Zuckerbraun v General Dynamics Corp, 935 F2d
15 544, 547-48 (2d Cir 1991) (dismissing wrongful death claim
16 implicating classified information about the “design, manufacture,
17 performance, functional characteristics, and testing of [weapons]
18 systems and the rules of engagement”); Fitzgerald v Penthouse Intl,
19 776 F2d 1236, 1242-43 (4th Cir 1985) (dismissing libel suit
20 “charging the plaintiff with the unauthorized sale of a top secret
21 marine mammal weapons system”); Halpern v United States, 258 F2d
22 36, 44 (2d Cir 1958) (rejecting government’s motion to dismiss in a
23 case involving a patent with military applications withheld under a
24 secrecy order); Clift v United States, 808 F Supp 101, 111 (D Conn
25 1991) (dismissing patent dispute over a cryptographic encoding
26 device).
27 //
28 //
33
- ER 268 -
1 By contrast, the very subject matter of this action is

2 hardly a secret. As described above, public disclosures by the
3 government and AT&T indicate that AT&T is assisting the government
4 to implement some kind of surveillance program. See supra I(E)(1).
5 For this reason, the present action is also different
6 from El-Masri v Tenet, the recently dismissed case challenging the
7 government’s alleged “extraordinary rendition program.” In El-
8 Masri, only limited sketches of the alleged program had been
9 disclosed and the whole object of the suit was to reveal classified
10 details regarding “the means and methods the foreign intelligence
11
services of this and other countries used to carry out the

12
program.” El-Masri, 2006 WL 1391390, *5. By contrast, this case

13 focuses only on whether AT&T intercepted and disclosed
14 communications or communication records to the government. And as
15 described above, significant amounts of information about the
16 government’s monitoring of communication content and AT&T’s
17 intelligence relationship with the government are already non-
18 classified or in the public record.
19
20 3
21 The court also declines to decide at this time whether
22 this case should be dismissed on the ground that the government’s
23 state secrets assertion will preclude evidence necessary for
24 plaintiffs to establish a prima facie case or for AT&T to raise a
25 valid defense to the claims. Plaintiffs appear to be entitled to
26 at least some discovery. See infra I(G)(3). It would be premature
27 to decide these issues at the present time. In drawing this
28 conclusion, the court is following the approach of the courts in
34
- ER 269 -
1 Halkin v Helms and Ellsberg v Mitchell; these courts did not

2 dismiss those cases at the outset but allowed them to proceed to
3 discovery sufficiently to assess the state secrets privilege in
4 light of the facts. The government has not shown why that should
5 not be the course of this litigation.
6
7 4
8 In sum, for much the same reasons that Totten does not
9 preclude this suit, the very subject matter of this action is not a
10 “secret” for purposes of the state secrets privilege and it would
11
be premature to conclude that the privilege will bar evidence

12
necessary for plaintiffs’ prima facie case or AT&T’s defense.

13 Because of the public disclosures by the government and AT&T, the
14 court cannot conclude that merely maintaining this action creates a
15 “reasonable danger” of harming national security. Accordingly,
16 based on the foregoing, the court DENIES the government’s motion to
17 dismiss.
18
19 F
20 The court hastens to add that its present ruling should
21 not suggest that its in camera, ex parte review of the classified
22 documents confirms the truth of the particular allegations in
23 plaintiffs’ complaint. Plaintiffs allege a surveillance program of
24 far greater scope than the publicly disclosed “terrorist
25 surveillance program.” The existence of this alleged program and
26 AT&T’s involvement, if any, remain far from clear. And as in
27 Halkin v Helms, it is certainly possible that AT&T might be
28 entitled to summary judgment at some point if the court finds that
35
- ER 270 -
1 the state secrets privilege blocks certain items of evidence that

2 are essential to plaintiffs’ prima facie case or AT&T’s defense.
3 The court also recognizes that legislative or other developments
4 might alter the course of this litigation.
5 But it is important to note that even the state secrets
6 privilege has its limits. While the court recognizes and respects
7 the executive’s constitutional duty to protect the nation from
8 threats, the court also takes seriously its constitutional duty to
9 adjudicate the disputes that come before it. See Hamdi v Rumsfeld,
10 542 US 507, 536 (2004) (plurality opinion) (“Whatever power the
11
United States Constitution envisions for the Executive in its

12
exchanges with other nations or with enemy organizations in times

13 of conflict, it most assuredly envisions a role for all three
14 branches when individual liberties are at stake.”). To defer to a
15 blanket assertion of secrecy here would be to abdicate that duty,
16 particularly because the very subject matter of this litigation has
17 been so publicly aired. The compromise between liberty and
18 security remains a difficult one. But dismissing this case at the
19 outset would sacrifice liberty for no apparent enhancement of
20 security.
21 //
22 //
23 //
24 //
25 //
26 //
27 //
28 //
36
- ER 271 -
1 G
2 The government also contends the issue whether AT&T
3 received a certification authorizing its assistance to the
4 government is a state secret. Gov 5/17/06 Br at 17.
5
6 1
7 The procedural requirements and impact of a certification
8 under Title III are addressed in 18 USC § 2511(2)(a)(ii):
9 Notwithstanding any other law, providers of wire or
electronic communication service, their officers,
10 employees, and agents, * * * are authorized to
provide information, facilities, or technical
11
assistance to persons authorized by law to

intercept wire, oral, or electronic communications
12
or to conduct electronic surveillance, as defined

in section 101 of [FISA] * * * if such provider,
13 its officers, employees, or agents, * * * has been
provided with —– * * *
14
(B) a certification in writing by a person
15 specified in section 2518(7) of this title [18 USCS
§ 2518(7)] or the Attorney General of the United
16 States that no warrant or court order is required
by law, that all statutory requirements have been
17 met, and that the specified assistance is required
* * *.
18
19 Although it is doubtful whether plaintiffs’ constitutional claim
20 would be barred by a valid certification under section
21 2511(2)(a)(ii), this provision on its face makes clear that a valid
22 certification would preclude the statutory claims asserted here.
23 See 18 USC § 2511(2)(a)(ii) (“No cause of action shall lie in any
24 court against any provider of wire or electronic communication
25 service * * * for providing information, facilities, or assistance
26 in accordance with the terms of a * * * certification under this
27 chapter.”).
28 //
37
- ER 272 -
1 2
2 As noted above, it is not a secret for purposes of the
3 state secrets privilege that AT&T and the government have some kind
4 of intelligence relationship. See supra I(E)(1). Nonetheless, the
5 court recognizes that uncovering whether and to what extent a
6 certification exists might reveal information about AT&T’s
7 assistance to the government that has not been publicly disclosed.
8 Accordingly, in applying the state secrets privilege to the
9 certification question, the court must look deeper at what
10 information has been publicly revealed about the alleged electronic
11
surveillance programs. The following chart summarizes what the

12
government has disclosed about the scope of these programs in terms

13 of (1) the individuals whose communications are being monitored,
14 (2) the locations of those individuals and (3) the types of
15 information being monitored:
16
17 Purely domestic Domestic-foreign Communication
communication communication records
18 content content
19 General public Government Government Government

DENIES DENIES NEITHER
20 CONFIRMS NOR
al Qaeda or Government Government DENIES
21 affiliate DENIES CONFIRMS
member/agent
22
23
As the chart relates, the government’s public disclosures
24
regarding monitoring of “communication content” (i e, wiretapping
25
or listening in on a communication) differ significantly from its
26
disclosures regarding “communication records” (i e, collecting
27
ancillary data pertaining to a communication, such as the telephone
28
38
- ER 273 -
1 numbers dialed by an individual). See supra I(C)(1). Accordingly,

2 the court separately addresses for each alleged program whether
3 revealing the existence or scope of a certification would disclose
4 a state secret.
5
6 3
7 Beginning with the warrantless monitoring of
8 “communication content,” the government has confirmed that it
9 monitors “contents of communications where * * * one party to the
10 communication is outside the United States” and the government has
11
“a reasonable basis to conclude that one party to the communication

12
is a member of al Qaeda, affiliated with al Qaeda, or a member of

13 an organization affiliated with al Qaeda, or working in support of
14 al Qaeda.” 12/19/05 Press Briefing at 1. The government denies
15 listening in without a warrant on any purely domestic
16 communications or communications in which neither party has a
17 connection to al Qaeda or a related terrorist organization. In
18 sum, regarding the government’s monitoring of “communication
19 content,” the government has disclosed the universe of
20 possibilities in terms of whose communications it monitors and
21 where those communicating parties are located.
22 Based on these public disclosures, the court cannot
23 conclude that the existence of a certification regarding the
24 “communication content” program is a state secret. If the
25 government’s public disclosures have been truthful, revealing
26 whether AT&T has received a certification to assist in monitoring
27 communication content should not reveal any new information that
28 would assist a terrorist and adversely affect national security.
39
- ER 274 -
1 And if the government has not been truthful, the state secrets
2 privilege should not serve as a shield for its false public
3 statements. In short, the government has opened the door for
4 judicial inquiry by publicly confirming and denying material
5 information about its monitoring of communication content.
6 Accordingly, the court concludes that the state secrets
7 privilege will not prevent AT&T from asserting a certification-
8 based defense, as appropriate, regarding allegations that it
9 assisted the government in monitoring communication content. The
10 court envisions that AT&T could confirm or deny the existence of a
11
certification authorizing monitoring of communication content

12
through a combination of responses to interrogatories and in camera

13 review by the court. Under this approach, AT&T could reveal
14 information at the level of generality at which the government has
15 publicly confirmed or denied its monitoring of communication
16 content. This approach would also enable AT&T to disclose the non-
17 privileged information described here while withholding any
18 incidental privileged information that a certification might
19 contain.
20
21 4
22 Turning to the alleged monitoring of communication
23 records, the court notes that despite many public reports on the
24 matter, the government has neither confirmed nor denied whether it
25 monitors communication records and has never publicly disclosed
26 whether the NSA program reported by USA Today on May 11, 2006,
27 actually exists. Although BellSouth, Verizon and Qwest have denied
28 participating in this program, AT&T has neither confirmed nor
40
- ER 275 -
1 denied its involvement. Hence, unlike the program monitoring

2 communication content, the general contours and even the existence
3 of the alleged communication records program remain unclear.
4 Nonetheless, the court is hesitant to conclude that the
5 existence or non-existence of the communication records program
6 necessarily constitutes a state secret. Confirming or denying the
7 existence of this program would only affect a terrorist who was
8 insensitive to the publicly disclosed “terrorist surveillance
9 program” but cared about the alleged program here. This would seem
10 unlikely to occur in practice given that the alleged communication
11
records program, which does not involve listening in on

12
communications, seems less intrusive than the “terrorist

13 surveillance program,” which involves wiretapping. And in any
14 event, it seems odd that a terrorist would continue using AT&T
15 given that BellSouth, Verizon and Qwest have publicly denied
16 participating in the alleged communication records program and
17 would appear to be safer choices. Importantly, the public denials
18 by these telecommunications companies undercut the government and
19 AT&T’s contention that revealing AT&T’s involvement or lack thereof
20 in the program would disclose a state secret.
21 Still, the court recognizes that it is not in a position
22 to estimate a terrorist’s risk preferences, which might depend on
23 facts not before the court. For example, it may be that a
24 terrorist is unable to avoid AT&T by choosing another provider or,
25 for reasons outside his control, his communications might
26 necessarily be routed through an AT&T facility. Revealing that a
27 communication records program exists might encourage that terrorist
28 to switch to less efficient but less detectable forms of
41
- ER 276 -
1 communication. And revealing that such a program does not exist

2 might encourage a terrorist to use AT&T services when he would not
3 have done so otherwise. Accordingly, for present purposes, the
4 court does not require AT&T to disclose what relationship, if any,
5 it has with this alleged program.
6 The court stresses that it does not presently conclude
7 that the state secrets privilege will necessarily preclude AT&T
8 from revealing later in this litigation information about the
9 alleged communication records program. While this case has been
10 pending, the government and telecommunications companies have made
11
substantial public disclosures on the alleged NSA programs. It is

12
conceivable that these entities might disclose, either deliberately

13 or accidentally, other pertinent information about the
14 communication records program as this litigation proceeds. The
15 court recognizes such disclosures might make this program’s
16 existence or non-existence no longer a secret. Accordingly, while
17 the court presently declines to permit any discovery regarding the
18 alleged communication records program, if appropriate, plaintiffs
19 can request that the court revisit this issue in the future.
20
21 5
22 Finally, the court notes plaintiffs contend that
23 Congress, through various statutes, has limited the state secrets
24 privilege in the context of electronic surveillance and has
25 abrogated the privilege regarding the existence of a government
26 certification. See Doc #192 (Pl Opp Gov MTD) at 16-26, 45-48.
27 Because these arguments potentially implicate highly complicated
28 separation of powers issues regarding Congress’ ability to abrogate
42
- ER 277 -
1 what the government contends is a constitutionally protected

2 privilege, the court declines to address these issues presently,
3 particularly because the issues might very well be obviated by
4 future public disclosures by the government and AT&T. If
5 necessary, the court may revisit these arguments at a later stage
6 of this litigation.
7
8 H
9 The government also asserts two statutory privileges in
10 its motion to dismiss that it contends apply “to any intelligence-
11
related information, sources and methods implicated by

12
[p]laintiffs’ claims and the information covered by these privilege

13 claims are at least co-extensive with the assertion of the state
14 secrets privilege by the DNI.” Gov MTD at 14. First, the
15 government relies on 50 USC § 402 note, which provides:
16 [N]othing in this Act or any other law * * * shall
be construed to require the disclosure of the
17 organization or any function of the National
Security Agency, of any information with respect to
18 the activities thereof, or of the names, titles,
salaries, or number of the persons employed by such
19 agency.
20 The government also relies on 50 USC § 403-1(i)(1), which states,
21 “The Director of National Intelligence shall protect intelligence
22 sources and methods from unauthorized disclosure.”
23 Neither of these provisions by their terms requires the
24 court to dismiss this action and it would be premature for the
25 court to do so at this time. In opposing a subsequent summary
26 judgment motion, plaintiffs could rely on many non-classified
27 materials including present and future public disclosures of the
28 government or AT&T on the alleged NSA programs, the AT&T documents
43
- ER 278 -
1 and the supporting Klein and Marcus declarations and information

2 gathered during discovery. Hence, it is at least conceivable that
3 some of plaintiffs’ claims, particularly with respect to
4 declaratory and injunctive relief, could survive summary judgment.
5 After discovery begins, the court will determine step-by-step
6 whether the privileges prevent plaintiffs from discovering
7 particular evidence. But the mere existence of these privileges
8 does not justify dismissing this case now.
9 Additionally, neither of these provisions block AT&T from
10 producing any certification that it received to assist the
11
government in monitoring communication content, see supra I(G)(3).

12
Because information about this certification would be revealed only

13 at the same level of generality as the government’s public
14 disclosures, permitting this discovery should not reveal any new
15 information on the NSA’s activities or its intelligence sources or
16 methods, assuming that the government has been truthful.
17 Accordingly, the court DENIES the government’s motion to
18 dismiss based on the statutory privileges and DENIES the privileges
19 with respect to any certification that AT&T might have received
20 authorizing it to monitor communication content.
21 //
22 //
23 //
24 //
25 //
26 //
27 //
28 //
44
- ER 279 -
1 II
2 AT&T moves to dismiss plaintiffs’ complaint on multiple
3 grounds, contending that (1) plaintiffs lack standing, (2) the
4 amended complaint fails to plead affirmatively the absence of
5 immunity from suit and (3) AT&T is entitled to statutory, common
6 law and qualified immunity. Because standing is a threshold
7 jurisdictional question, the court addresses that issue first. See
8 Steel Company v Citizens for a Better Environment, 523 US 83, 94,
9 102 (1998).
10
11
A
12
“[T]he core component of standing is an essential and

13 unchanging part of the case-or-controversy requirement of Article
14 III.” Lujan v Defenders of Wildlife, 504 US 555, 560 (1992). To
15 establish standing under Article III, a plaintiff must satisfy
16 three elements: (1) “the plaintiff must have suffered an injury in
17 fact —– an invasion of a legally protected interest which is (a)
18 concrete and particularized and (b) actual or imminent, not
19 conjectural or hypothetical,” (2) “there must be a causal
20 connection between the injury and the conduct complained of” and
21 (3) “it must be likely, as opposed to merely speculative, that the
22 injury will be redressed by a favorable decision.” Id at 560-61
23 (internal quotation marks, citations and footnote omitted). A
24 party invoking federal jurisdiction has the burden of establishing
25 its standing to sue. Id at 561.
26 //
27 //
28 //
45
- ER 280 -
1 In the present case, AT&T contends plaintiffs have not

2 sufficiently alleged injury-in-fact and their complaint relies on
3 “wholly conclusory” allegations. AT&T MTD at 20-22. According to
4 AT&T, “Absent some concrete allegation that the government
5 monitored their communications or records, all plaintiffs really
6 have is a suggestion that AT&T provided a means by which the
7 government could have done so had it wished. This is anything but
8 injury-in-fact.” Id at 20 (emphasis in original). AT&T compares
9 this case to United Presbyterian Church v Reagan, 738 F2d 1375 (DC
10 Cir 1984) (written by then-Judge Scalia), in which the court found
11
that plaintiffs’ allegations of unlawful surveillance were “too

12
generalized and nonspecific to support a complaint.” Id at 1380.

13 As a preliminary matter, AT&T incorrectly focuses on
14 whether plaintiffs have pled that the government “monitored
15 [plaintiffs’] communications or records” or “targeted [plaintiffs]
16 or their communications.” Instead, the proper focus is on AT&T’s
17 actions. Plaintiffs’ statutory claims stem from injuries caused
18 solely by AT&T through its alleged interception, disclosure, use,
19 divulgence and/or publication of plaintiffs’ communications or
20 communication records. FAC, ¶¶ 93-95, 102-05, 113-14, 121, 128,
21 135-41. Hence, plaintiffs need not allege any facts regarding the
22 government’s conduct to state these claims.
23 More importantly, for purposes of the present motion to
24 dismiss, plaintiffs have stated sufficient facts to allege injury-
25 in-fact for all their claims. “At the pleading stage, general
26 factual allegations of injury resulting from the defendant’s
27 conduct may suffice, for on a motion to dismiss we ‘presume that
28 general allegations embrace those specific facts that are necessary
46
- ER 281 -
1 to support the claim.’” Lujan, 504 US at 561 (quoting Lujan v

2 National Wildlife Federation, 497 US 871, 889 (1990)). Throughout
3 the complaint, plaintiffs generally describe the injuries they have
4 allegedly suffered because of AT&T’s illegal conduct and its
5 collaboration with the government. See, e g, FAC, ¶ 61 (“On
6 information and belief, AT&T Corp has provided the government with
7 direct access to the contents of the Hawkeye, Aurora and/or other
8 databases that it manages using Daytona, including all information,
9 records, [dialing, routing, addressing and/or signaling
10 information] and [customer proprietary network information]
11
pertaining to [p]laintiffs and class members, by providing the

12
government with copies of the information in the databases and/or

13 by giving the government access to Daytona’s querying capabilities
14 and/or some other technology enabling the government agents to
15 search the databases’ contents.”); id, ¶ 6 (“On information and
16 belief, AT&T Corp has opened its key telecommunications facilities
17 and databases to direct access by the NSA and/or other government
18 agencies, intercepting and disclosing to the government the
19 contents of its customers’ communications as well as detailed
20 communications records about millions of its customers, including
21 [p]laintiffs and class members.”).
22 By contrast, plaintiffs in United Presbyterian Church
23 alleged they “ha[d] been informed on numerous occasions” that mail
24 that they had sent never reached its destination, “ha[d] reason to
25 believe that, for a long time, [their] officers, employees, and
26 persons associated with [them had] been subjected to government
27 surveillance, infiltration and disruption” and “discern[ed] a long-
28 term pattern of surveillance of [their] members, disruption of
47
- ER 282 -
1 their speaking engagements in this country, and attempts at

2 character assassination.” See 738 F2d at 1380 n2. Because these
3 allegations were more attenuated and less concrete than the
4 specific injuries alleged here, United Presbyterian Church does not
5 support dismissing this action.
6 AT&T also contends “[p]laintiffs lack standing to assert
7 their statutory claims (Counts II-VII) because the FAC alleges no
8 facts suggesting that their statutory rights have been violated”
9 and “the FAC alleges nothing to suggest that the named plaintiffs
10 were themselves subject to surveillance.” AT&T MTD at 24-25
11
(emphasis in original). But AT&T ignores that the gravamen of

12
plaintiffs’ complaint is that AT&T has created a dragnet that

13 collects the content and records of its customers’ communications.
14 See, e g, FAC, ¶¶ 42-64. The court cannot see how any one
15 plaintiff will have failed to demonstrate injury-in-fact if that
16 plaintiff effectively demonstrates that all class members have so
17 suffered. This case is plainly distinguishable from Halkin II, for
18 in that case, showing that plaintiffs were on a watchlist was not
19 tantamount to showing that any particular plaintiff suffered a
20 surveillance-related injury-in-fact. See Halkin II, 690 F2d at
21 999-1001. As long as the named plaintiffs were, as they allege,
22 AT&T customers during the relevant time period (FAC, ¶¶ 13-16), the
23 alleged dragnet would have imparted a concrete injury on each of
24 them.
25 //
26 //
27 //
28 //
48
- ER 283 -
1 This conclusion is not altered simply because the alleged

2 injury is widely shared among AT&T customers. In FEC v Akins, 524
3 US 11 (1998), the Supreme Court explained:
4 Whether styled as a constitutional or prudential
limit on standing, the Court has sometimes
5 determined that where large numbers of Americans
suffer alike, the political process, rather than
6 the judicial process, may provide the more
appropriate remedy for a widely shared grievance.
7
[This] kind of judicial language * * * however,
8 invariably appears in cases where the harm at issue
is not only widely shared, but is also of an
9 abstract and indefinite nature.
10 Id at 23. The Court continued:
11
[W]here a harm is concrete, though widely shared,

the Court has found “injury in fact.” Thus the
12
fact that a political forum may be more readily

available where an injury is widely shared (while
13 counseling against, say, interpreting a statute as
conferring standing) does not, by itself,
14 automatically disqualify an interest for Article
III purposes. Such an interest, where sufficiently
15 concrete, may count as an “injury in fact.”
16 Id at 24.
17 Here, the alleged injury is concrete even though it is
18 widely shared. Despite AT&T’s alleged creation of a dragnet to
19 intercept all or substantially all of its customers’
20 communications, this dragnet necessarily inflicts a concrete injury
21 that affects each customer in a distinct way, depending on the
22 content of that customer’s communications and the time that
23 customer spends using AT&T services. Indeed, the present situation
24 resembles a scenario in which “large numbers of individuals suffer
25 the same common-law injury (say, a widespread mass tort).” Id.
26 //
27 //
28 //
49
- ER 284 -
1 AT&T also contends that the state secrets privilege bars

2 plaintiffs from establishing standing. Doc #244 (AT&T Reply) at
3 16-18. See also Gov MTD 16-20. But as described above, the state
4 secrets privilege will not prevent plaintiffs from receiving at
5 least some evidence tending to establish the factual predicate for
6 the injury-in-fact underlying their claims directed at AT&T’s
7 alleged involvement in the monitoring of communication content.
8 See supra I(G)(3). And the court recognizes that additional facts
9 might very well be revealed during, but not as a direct consequence
10 of, this litigation that obviate many of the secrecy concerns
11
currently at issue regarding the alleged communication records

12
program. Hence, it is unclear whether the privilege would

13 necessarily block AT&T from revealing information about its
14 participation, if any, in that alleged program. See supra I(G)(4).
15 The court further notes that the AT&T documents and the
16 accompanying Klein and Marcus declarations provide at least some
17 factual basis for plaintiffs’ standing. Accordingly, the court
18 does not conclude at this juncture that plaintiffs’ claims would
19 necessarily lack the factual support required to withstand a future
20 jurisdictional challenge based on lack of standing.
21 Because plaintiffs have sufficiently alleged that they
22 suffered an actual, concrete injury traceable to AT&T and
23 redressable by this court, the court DENIES AT&T’s motion to
24 dismiss for lack of standing.
25 //
26 //
27 //
28 //
50
- ER 285 -
1 B
2 AT&T also contends that telecommunications providers are
3 immune from suit if they receive a government certification
4 authorizing them to conduct electronic surveillance. AT&T MTD at
5 5. AT&T argues that plaintiffs have the burden to plead
6 affirmatively that AT&T lacks such a certification and that
7 plaintiffs have failed to do so here, thereby making dismissal
8 appropriate. Id at 10-13.
9 As discussed above, the procedural requirements for a
10 certification are addressed in 18 USC § 2511(2)(a)(ii)(B). See
11
supra I(G)(1). Under section 2511(2)(a)(ii), “No cause of action

12
shall lie in any court against any provider of wire or electronic

13 communication service * * * for providing information, facilities,
14 or assistance in accordance with the terms of a * * * certification
15 under this chapter.” This provision is referenced in 18 USC §
16 2520(a) (emphasis added), which creates a private right of action
17 under Title III:
18 Except as provided in section 2511(2)(a)(ii), any
person whose wire, oral, or electronic
19 communication is intercepted, disclosed, or
intentionally used in violation of this chapter [18
20 USCS §§ 2510 et seq] may in a civil action recover
from the person or entity, other than the United
21 States, which engaged in that violation such relief
as may be appropriate.
22
23 A similar provision exists at 18 USC § 2703(e) (emphasis added):
24 No cause of action shall lie in any court against
any provider of wire or electronic communication
25 service, its officers, employees, agents, or other
specified persons for providing information,
26 facilities, or assistance in accordance with the
terms of a court order, warrant, subpoena,
27 statutory authorization, or certification under
this chapter.
28
51
- ER 286 -
1 The court recognizes that the language emphasized above

2 suggests that to state a claim under these statutes, a plaintiff
3 must affirmatively allege that a telecommunications provider did
4 not receive a government certification. And out of the many
5 statutory exceptions in section 2511, only section 2511(2)(a)(ii)
6 appears in section 2520(a), thereby suggesting that a lack of
7 certification is an element of a Title III claim whereas the other
8 exceptions are simply affirmative defenses. As AT&T notes, this
9 interpretation is at least somewhat supported by the Senate report
10 accompanying 18 USC § 2520, which states in relevant part:
11
A civil action will not lie [under 18 USC § 2520]

where the requirements of sections 2511(2)(a)(ii) of
12
title 18 are met. With regard to that exception,

the Committee intends that the following procedural
13 standards will apply:
14 (1) The complaint must allege that a wire or
electronic communications service provider (or
15 one of its employees) (a) disclosed the
existence of a wiretap; (b) acted without a
16 facially valid court order or certification;
(c) acted beyond the scope of a court order or
17 certification or (d) acted on bad faith.
Acting in bad faith would include failing to
18 read the order or collusion. If the complaint
fails to make any of these allegations, the
19 defendant can move to dismiss the complaint for
failure to state a claim upon which relief can
20 be granted.
21 ECPA, S Rep No 99-541, 99th Cong, 2d Sess 26 (1986) (reprinted in
22 1986 USCCAN 3555, 3580) (emphasis added).
23 Nonetheless, the statutory text does not explicitly
24 provide for a heightened pleading requirement, which is in essence
25 what AT&T seeks to impose here. And the court is reluctant to
26 infer a heightened pleading requirement into the statute given that
27 in other contexts, Congress has been explicit when it intended to
28 create such a requirement. See, e g, Private Securities Litigation
52
- ER 287 -
1 Reform Act of 1995, § 101, 15 USC § 78u-4(b)(1), (2) (prescribing

2 heightened pleading standards for securities class actions).
3 In any event, the court need not decide whether
4 plaintiffs must plead affirmatively the absence of a certification
5 because the present complaint, liberally construed, alleges that
6 AT&T acted outside the scope of any government certification it
7 might have received. In particular, paragraphs 81 and 82, which
8 are incorporated in all of plaintiffs’ claims, state:
9 81. On information and belief, the
above-described acts [by defendants] of
10 interception, disclosure, divulgence and/or use of
Plaintiffs’ and class members’ communications,
11
contents of communications, and records pertaining

to their communications occurred without judicial
12
or other lawful authorization, probable cause,

and/or individualized suspicion.
13 82. On information and belief, at all
relevant times, the government instigated, directed
14 and/or tacitly approved all of the above-described
acts of AT&T Corp.
15
FAC, ¶¶ 81-82 (emphasis added).
16
Plaintiffs contend that the phrase “occurred without
17
judicial or other lawful authorization” means that AT&T acted
18
without a warrant or a certification. Doc #176 (Pl Opp AT&T MTD)
19
at 13-15. At oral argument, AT&T took issue with this
20
characterization of “lawful authorization”:
21
The emphasis there is on the word ‘lawful[.’] When
22 you read that paragraph in context, it’s clear that
what [plaintiffs are] saying is that any
23 authorization [AT&T] receive[s] is, in
[plaintiffs’] view, unlawful. And you can see that
24 because of the other paragraphs in the complaint.
The very next one, [p]aragraph 82, is the paragraph
25 where [plaintiffs] allege that the United States
government approved and instigated all of our
26 actions. It wouldn’t be reasonable to construe
Paragraph 81 as saying that [AT&T was] not
27 authorized by the government to do what [AT&T]
allegedly did when the very next paragraph states
28 the exact opposite.
53
- ER 288 -
1 6/23/06 Transcript at 10:21-11:6. Indeed, the court does not

2 question that it would be extraordinary for a large, sophisticated
3 entity like AT&T to assist the government in a warrantless
4 surveillance program without receiving a certification to insulate
5 its actions.
6 Nonetheless, paragraph 81 could be reasonably interpreted
7 as alleging just that. Even if “the government instigated,
8 directed and/or tacitly approved” AT&T’s alleged actions, it does
9 not inexorably follow that AT&T received an official certification
10 blessing its actions. At the hearing, plaintiffs’ counsel
11
suggested that they had “information and belief based on the news
12
reports that [the alleged activity] was done based on oral

13 requests” not a written certification. Id at 24:21-22.
14 Additionally, the phrase “judicial or other lawful authorization”
15 in paragraph 81 parallels how “a court order” and “a certification”
16 appear in 18 USC §§ 2511(2)(a)(ii)(A) and (B), respectively; this
17 suggests that “lawful authorization” refers to a certification.
18 Interpreted in this manner, plaintiffs are making a factual
19 allegation that AT&T did not receive a certification.
20 In sum, even if plaintiffs were required to plead
21 affirmatively that AT&T did not receive a certification authorizing
22 its alleged actions, plaintiffs’ complaint can fairly be
23 interpreted as alleging just that. Whether and to what extent the
24 government authorized AT&T’s alleged conduct remain issues for
25 further litigation. For now, however, the court DENIES AT&T’s
26 motion to dismiss on this ground.
27 //
28 //
54
- ER 289 -
1 C
2 AT&T also contends that the complaint should be dismissed
3 because it failed to plead the absence of an absolute common law
4 immunity to which AT&T claims to be entitled. AT&T MTD at 13-15.
5 AT&T asserts that this immunity “grew out of a recognition that
6 telecommunications carriers should not be subject to civil
7 liability for cooperating with government officials conducting
8 surveillance activities. That is true whether or not the
9 surveillance was lawful, so long as the government officials
10 requesting cooperation assured the carrier that it was.” Id at 13.
11
AT&T also argues that the statutory immunities do not evince a

12
“congressional purpose to displace, rather than supplement, the

13 common law.” Id.
14 AT&T overstates the case law when intimating that the
15 immunity is long established and unequivocal. AT&T relies
16 primarily on two cases: Halperin v Kissinger, 424 F Supp 838 (DDC
17 1976), revd on other grounds, 606 F2d 1192 (DC Cir 1979) and Smith
18 v Nixon, 606 F2d 1183 (DC Cir 1979). In Halperin, plaintiffs
19 alleged that the Chesapeake and Potomac Telephone Company (C&P)
20 assisted federal officials in illegally wiretapping plaintiffs’
21 home telephone, thereby violating plaintiffs’ constitutional and
22 Title III statutory rights. 424 F Supp at 840. In granting
23 summary judgment for C&P, the district court noted:
24 //
25 //
26 //
27 //
28 //
55
- ER 290 -
1 Chesapeake and Potomac Telephone Company, argues

persuasively that it played no part in selecting
2 any wiretap suspects or in determining the length
of time the surveillance should remain. It
3 overheard none of plaintiffs’ conversations and was
not informed of the nature or outcome of the
4 investigation. As in the past, C&P acted in
reliance upon a request from the highest Executive
5 officials and with assurances that the wiretap
involved national security matters. Under these
6 circumstances, C&P’s limited technical role in the
surveillance as well as its reasonable expectation
7 of legality cannot give rise to liability for any
statutory or constitutional violation.
8
Id at 846.
9
Smith v Nixon involved an allegedly illegal wiretap that
10
was part of the same surveillance program implicated in Halperin.
11
In addressing C&P’s potential liability, the Smith court noted:

12
The District Court dismissed the action against

13 C&P, which installed the wiretap, on the ground
cited in the District Court’s opinion in Halperin:
14 ‘C&P’s limited technical role in the surveillance
as well as its reasonable expectation of legality
15 cannot give rise to liability for any statutory or
constitutional violation. * * *.’ We think this
16 was the proper disposition. The telephone company
did not initiate the surveillance, and it was
17 assured by the highest Executive officials in this
nation that the action was legal.
18
606 F2d at 1191 (citation and footnote omitted) (omission in
19
original).
20
The court first observes that Halperin, which formed the
21
basis for the Smith decision, never indicated that C&P was “immune”
22
from suit; rather, the court granted summary judgment after it
23
determined that C&P played only a “limited technical role” in the
24
surveillance. And although C&P was dismissed in Smith on a motion
25
to dismiss, Smith never stated that C&P was immune from suit; the
26
only discussion of “immunity” there related to other defendants who
27
claimed entitlement to qualified and absolute immunity.
28
56
- ER 291 -
1 At best, the language in Halperin and Smith is equivocal:

2 the phrase “C&P’s limited technical role in the surveillance as
3 well as its reasonable expectation of legality cannot give rise to
4 liability for any statutory or constitutional violation” could
5 plausibly be interpreted as describing a good faith defense. And
6 at least one court appears to have interpreted Smith in that
7 manner. See Manufacturas Intl, Ltda v Manufacturers Hanover Trust
8 Co, 792 F Supp 180, 192-93 (EDNY 1992) (referring to Smith while
9 discussing good faith defenses).
10 Moreover, it is not clear at this point in the litigation
11
whether AT&T played a “mere technical role” in the alleged NSA

12
surveillance programs. The complaint alleges that “at all relevant

13 times, the government instigated, directed and/or tacitly approved
14 all of the above-described acts of AT&T Corp.” FAC, ¶ 82. But
15 given the massive scale of the programs alleged here and AT&T’s
16 longstanding history of assisting the government in classified
17 matters, one could reasonably infer that AT&T’s assistance here is
18 necessarily more comprehensive than C&P’s assistance in Halperin
19 and Smith. Indeed, there is a world of difference between a single
20 wiretap and an alleged dragnet that sweeps in the communication
21 content and records of all or substantially all AT&T customers.
22 AT&T also relies on two Johnson-era cases: Fowler v
23 Southern Bell Telephone & Telegraph Co, 343 F2d 150 (5th Cir 1965),
24 and Craska v New York Telephone Co, 239 F Supp 932 (NDNY 1965).
25 Fowler involved a Georgia state claim for invasion of right of
26 privacy against a telephone company for assisting federal officers
27 to intercept plaintiff’s telephone conversations. Fowler noted
28 that a “defense of privilege” would extend to the telephone company
57
- ER 292 -
1 only if the court determined that the federal officers acted within
2 the scope of their duties:
3 If it is established that [the federal officers]
acted in the performance and scope of their
4 official powers and within the outer perimeter of
their duties as federal officers, then the defense
5 of privilege would be established as to them. In
this event the privilege may be extended to
6 exonerate the Telephone Company also if it appears,
in line with the allegations of the complaint, that
7 the Telephone Company acted for and at the request
of the federal officers and within the bounds of
8 activity which would be privileged as to the
federal officers.
9
343 F2d at 156-57 (emphasis added). Accordingly, Fowler does not
10
absolve AT&T of any liability unless and until the court determines
11
that the government acted legally in creating the NSA surveillance

12
programs alleged in the complaint.

13
Craska also does not help AT&T. In that case, plaintiff
14
sued a telephone company for violating her statutory rights by
15
turning over telephone records to the government under compulsion
16
of state law. Craska, 239 F Supp at 933-34, 936. The court
17
declined to ascribe any liability to the telephone company because
18
its assistance was required under state law: “[T]he conduct of the
19
telephone company, acting under the compulsion of State law and
20
process, cannot sensibly be said to have joined in a knowing
21
venture of interception and divulgence of a telephone conversation,
22
which it sought by affirmative action to make succeed.” Id at 936.
23
By contrast, it is not evident whether AT&T was required to help
24
the government here; indeed, AT&T appears to have confirmed that it
25
did not have any legal obligation to assist the government
26
implement any surveillance program. 6/23/06 Transcript at 17:25-
27
18:4 (“The Court: Well, AT&T could refuse, could it not, to
28
58
- ER 293 -
1 provide access to its facilities? [AT&T]: Yes, it could. Under

2 [18 USC §] 2511, your Honor, AT&T would have the discretion to
3 refuse, and certainly if it believed anything illegal was
4 occurring, it would do so.”).
5 Moreover, even if a common law immunity existed decades
6 ago, applying it presently would undermine the carefully crafted
7 scheme of claims and defenses that Congress established in
8 subsequently enacted statutes. For example, all of the cases cited
9 by AT&T as applying the common law “immunity” were filed before the
10 certification provision of FISA went into effect. See § 301 of
11
FISA. That provision protects a telecommunications provider from

12
suit if it obtains from the Attorney General or other authorized

13 government official a written certification “that no warrant or
14 court order is required by law, that all statutory requirements
15 have been met, and that the specified assistance is required.” 18
16 USC § 2511(2)(a)(ii)(B). Because the common law “immunity” appears
17 to overlap considerably with the protections afforded under the
18 certification provision, the court would in essence be nullifying
19 the procedural requirements of that statutory provision by applying
20 the common law “immunity” here. And given the shallow doctrinal
21 roots of immunity for communications carriers at the time Congress
22 enacted the statutes in play here, there is simply no reason to
23 presume that a common law immunity is available simply because
24 Congress has not expressed a contrary intent. Cf Owen v City of
25 Independence, 445 US 622, 638 (1980) (“[N]otwithstanding § 1983’s
26 expansive language and the absence of any express incorporation of
27 common-law immunities, we have, on several occasions, found that a
28 tradition of immunity was so firmly rooted in the common law and
59
- ER 294 -
1 was supported such strong policy reasons that ‘Congress would have
2 specifically so provided had it wished to abolish the doctrine.’”
3 (quoting Pierson v Ray, 386 US 547, 555 (1967))).
4 Accordingly, the court DENIES AT&T’s motion to dismiss on
5 the basis of a purported common law immunity.
6
7 D
8 AT&T also argues that it is entitled to qualified
9 immunity. AT&T MTD at 16. Qualified immunity shields state actors
10 from liability for civil damages “insofar as their conduct does not
11
violate clearly established statutory or constitutional rights of

12
which a reasonable person would have known.” Harlow v Fitzgerald,

13 457 US 800, 818 (1982). “Qualified immunity strikes a balance
14 between compensating those who have been injured by official
15 conduct and protecting government’s ability to perform its
16 traditional functions.” Wyatt v Cole, 504 US 158, 167 (1992).
17 “[T]he qualified immunity recognized in Harlow acts to safeguard
18 government, and thereby to protect the public at large, not to
19 benefit its agents.” Wyatt v Cole, 504 US 158, 168 (1992).
20 Compare AT&T MTD at 17 (“It would make little sense to protect the
21 principal but not its agent.”). The Supreme Court does not “draw a
22 distinction for purposes of immunity law between suits brought
23 against state officials under [42 USC] § 1983 and suits brought
24 directly under the Constitution [via Bivens v Six Unknown Named
25 Agents, 403 US 388 (1971)] against federal officials.” Butz v
26 Economou, 438 US 478, 504 (1978).
27 //
28 //
60
- ER 295 -
1 At the pleadings stage, qualified immunity analysis

2 entails three steps. First, the court must determine whether,
3 taken in the light most favorable to the plaintiff, the facts
4 alleged show a violation of the plaintiffs’ statutory or
5 constitutional rights. Saucier v Katz, 533 US 194, 201 (2001). If
6 a violation has been alleged, the court next determines whether the
7 right infringed was clearly established at the time of the alleged
8 violation. Finally, the court assesses whether it would be clear
9 to a reasonable person in the defendant’s position that its conduct
10 was unlawful in the situation it confronted. Id at 202, 205. See
11
also Frederick v Morse, 439 F3d 1114, 1123 (9th Cir 2006)
12
(characterizing this final inquiry as a discrete third step in the

13 analysis). “This is not to say that an official action is
14 protected by qualified immunity unless the very action in question
15 has previously been held unlawful, but it is to say that in the
16 light of pre-existing law the unlawfulness must be apparent.” Hope
17 v Pelzer, 536 US 730, 739 (2002) (citation omitted).
18
19 1
20 When a private party seeks to invoke qualified immunity,
21 the court must first decide whether qualified immunity is
22 “categorically available,” which “requires an evaluation of the
23 appropriateness of qualified immunity given its historical
24 availability and the policy considerations underpinning the
25 doctrine.” Jensen v Lane County, 222 F3d 570, 576 (9th Cir 2000).
26 This inquiry is distinct from the question whether a nominally
27 private party is a state actor for purposes of a section 1983 or
28 Bivens claim.
61
- ER 296 -
1 In Wyatt v Cole, 504 US 158 (1992), the Supreme Court

2 laid the foundation for determining whether a private actor is
3 entitled to qualified immunity. The plaintiff there sued under
4 section 1983 to recover property from a private party who had
5 earlier obtained a writ of replevin against the plaintiff. See
6 Lugar v Edmondson Oil Co, 457 US 922 (1982) (holding that a private
7 party acted under color of law under similar circumstances). After
8 determining that the common law did not recognize an immunity from
9 analogous tort suits, the court “conclude[d] that the rationales
10 mandating qualified immunity for public officials are not
11
applicable to private parties.” Wyatt, 504 US at 167. Although

12
Wyatt purported to be limited to its facts, id at 168, the broad

13 brush with which the Court painted suggested that private parties
14 could rarely, if ever, don the cloak of qualified immunity. See
15 also Ace Beverage Co v Lockheed Information Mgmt Servs, 144 F3d
16 1218, 1219 n3 (9th Cir 1998) (noting that “[i]n cases decided
17 before [the Supreme Court’s decision in Richardson v McKnight, 521
18 US 399 (1997)],” the Ninth Circuit had “adopted a general rule that
19 private parties are not entitled to qualified immunity”).
20 Applying Wyatt to a case involving section 1983 claims
21 against privately employed prison guards, the Supreme Court in
22 Richardson v McKnight, 521 US 399 (1997), stated that courts should
23 “look both to history and to the purposes that underlie government
24 employee immunity in order to” determine whether that immunity
25 extends to private parties. Id at 404. Although this issue has
26 been addressed by the Ninth Circuit in several cases, the court has
27 yet to extend qualified immunity to a private party under McKnight.
28 See, e g, Ace Beverage, 144 F3d at 1220; Jensen, 222 F3d at 576-80.
62
- ER 297 -
1 2
2 The court now determines whether the history of the
3 alleged immunity and purposes of the qualified immunity doctrine
4 support extending qualified immunity to AT&T.
5 As described in section II(C), supra, no firmly rooted
6 common law immunity exists for telecommunications providers
7 assisting the government. And presently applying whatever immunity
8 might have previously existed would undermine the various statutory
9 schemes created by Congress, including the certification defense
10 under 18 USC § 2511(2)(a)(ii)(B).
11
Turning to the purposes of qualified immunity, they

12
include: “(1) protecting the public from unwarranted timidity on

13 the part of public officials and encouraging the vigorous exercise
14 of official authority; (2) preventing lawsuits from distracting
15 officials from their governmental duties; and (3) ensuring that
16 talented candidates are not deterred by the threat of damages suits
17 from entering public service.” Jensen, 222 F3d at 577 (citations,
18 quotations and alterations omitted). See also Harlow, 457 US at
19 816 (recognizing “the general costs of subjecting officials to the
20 risks of trial —– distraction of officials from their governmental
21 duties, inhibition of discretionary action, and deterrence of able
22 people from public service”). AT&T contends that national security
23 surveillance is “a traditional governmental function of the highest
24 importance” requiring access to the “critical telecommunications
25 infrastructure” that companies such as AT&T would be reluctant to
26 furnish if they were exposed to civil liability. AT&T MTD at 17.
27 //
28 //
63
- ER 298 -
1 AT&T’s concerns, while relevant, do not warrant extending

2 qualified immunity here because the purposes of that immunity are
3 already well served by the certification provision of 18 USC §
4 2511(2)(a)(ii). As noted above, although it is unclear whether a
5 valid certification would bar plaintiffs’ constitutional claim,
6 section 2511(2)(a)(ii) clearly states that a valid certification
7 precludes the statutory claims asserted here. See supra I(G)(1).
8 Hence, but for the government’s assertion of the state secrets
9 privilege, the certification provision would seem to facilitate
10 prompt adjudication of damages claims such as those at bar. And
11
because section 2511(2)(a)(ii)’s protection does not appear to

12
depend on a fact-intensive showing of good faith, the provision

13 could be successfully invoked without the burdens of full-blown
14 litigation. Compare Tapley v Collins, 211 F3d 1210, 1215 (11th Cir
15 2000) (discussing the differences between qualified immunity and
16 good faith defense under Title III, 18 USC § 2520(d)).
17 More fundamentally, “[w]hen Congress itself provides for
18 a defense to its own cause of action, it is hardly open to the
19 federal court to graft common law defenses on top of those Congress
20 creates.” Berry v Funk, 146 F3d 1003, 1013 (DC Cir 1998) (holding
21 that qualified immunity could not be asserted against a claim under
22 Title III). As plaintiffs suggest, the Ninth Circuit appears to
23 have concluded that the only defense under Title III is that
24 provided for by statute —– although, in fairness, the court did not
25 explicitly address the availability of qualified immunity. See
26 Jacobson v Rose, 592 F2d 515, 522-24 (9th Cir 1978) (joined by
27 then-Judge Kennedy). But cf Doe v United States, 941 F2d 780, 797-
28 99 (9th Cir 1991) (affirming grant of qualified immunity from
64
- ER 299 -
1 liability under section 504 of the Rehabilitation Act without

2 analyzing whether qualified immunity could be asserted in the first
3 place). Nonetheless, at least two appellate courts have concluded
4 that statutory defenses available under Title III do not preclude a
5 defendant from asserting qualified immunity. Blake v Wright, 179
6 F3d 1003, 1013 (6th Cir 1999) (The court “fail[ed] to see the logic
7 of providing a defense of qualified immunity to protect public
8 officials from personal liability when they violate constitutional
9 rights that are not clearly established and deny them qualified
10 immunity when they violate statutory rights that similarly are not
11
clearly established.”); accord Tapley, 211 F3d at 1216. But see

12
Mitchell v Forsyth, 472 US 511, 557 (1985) (Brennan concurring in

13 part and dissenting in part) (“The Court’s argument seems to be
14 that the trial court should have decided the legality of the
15 wiretap under Title III before going on to the qualified immunity
16 question, since that question arises only when considering the
17 legality of the wiretap under the Constitution.”).
18 With all due respect to the Sixth and Eleventh Circuits,
19 those courts appear to have overlooked the relationship between the
20 doctrine of qualified immunity and the schemes of state and federal
21 official liability that are essentially creatures of the Supreme
22 Court. Qualified immunity is a doctrinal outgrowth of expanded
23 state actor liability under 42 USC § 1983 and Bivens. See Monroe v
24 Pape, 365 US 167 (1961) (breathing new life into section 1983);
25 Scheuer v Rhodes, 416 US 232, 247 (1974) (deploying the phrase
26 “qualified immunity” for the first time in the Supreme Court’s
27 jurisprudence); Butz v Economou, 438 US 478 (1978) (extending
28 qualified immunity to federal officers sued under Bivens for
65
- ER 300 -
1 federal constitutional violations); Maine v Thiboutot, 448 US 1

2 (1980) (holding that section 1983 could be used to vindicate non-
3 constitutional statutory rights); Harlow, 457 US at 818 (making the
4 unprecedented reference to “clearly established statutory” rights
5 just two years after Thiboutot (emphasis added)). These causes of
6 action “were devised by the Supreme Court without any legislative
7 or constitutional (in the sense of positive law) guidance.”
8 Crawford-El v Britton, 93 F3d 813, 832 (DC Cir 1996) (en banc)
9 (Silberman concurring), vacated on other grounds, 523 US 574
10 (1998). “It is understandable then, that the Court also developed
11
the doctrine of qualified immunity to reduce the burden on public

12
officials.” Berry, 146 F3d at 1013.

13 In contrast, the statutes in this case set forth
14 comprehensive, free-standing liability schemes, complete with
15 statutory defenses, many of which specifically contemplate
16 liability on the part of telecommunications providers such as AT&T.
17 For example, the Stored Communications Act prohibits providers of
18 “electronic communication service” and “remote computing service”
19 from divulging contents of stored communications. See 18 USC §
20 2702(a)(1), (a)(2). Moreover, the Stored Communications Act
21 specifically contemplates carrier liability for unauthorized
22 disclosure of subscriber records “to any governmental entity.” See
23 id § 2702(a)(3). It can hardly be said that Congress did not
24 contemplate that carriers might be liable for cooperating with the
25 government when such cooperation did not conform to the
26 requirements of the act.
27 //
28 //
66
- ER 301 -
1 Similarly, Congress specifically contemplated that

2 communications carriers could be liable for violations of Title
3 III. See Jacobson, 592 F2d at 522. And in providing for a “good
4 faith” defense in Title III, Congress specifically sought “‘to
5 protect telephone companies or other persons who cooperate * * *
6 with law enforcement officials.’” Id at 522-23 (quoting Senate
7 debates). See also id at 523 n 13. Cf 18 USC § 2511(2)(a)(ii)
8 (providing a statutory defense to “providers of wire or electronic
9 communication service”).
10 In sum, neither the history of judicially created
11
immunities for telecommunications carriers nor the purposes of

12
qualified immunity justify allowing AT&T to claim the benefit of

13 the doctrine in this case.
14
15 3
16 The court also notes that based on the facts as alleged
17 in plaintiffs’ complaint, AT&T is not entitled to qualified
18 immunity with respect to plaintiffs’ constitutional claim, at least
19 not at this stage of the proceedings. Plaintiffs’ constitutional
20 claim alleges that AT&T provides the government with direct and
21 indiscriminate access to the domestic communications of AT&T
22 customers. See, e g, FAC, ¶ 42 (“On information and belief, AT&T
23 Corp has provided and continues to provide the government with
24 direct access to all or a substantial number of the communications
25 transmitted through its key domestic telecommunications facilities,
26 including direct access to streams of domestic, international and
27 foreign telephone and Internet communications.”); id, ¶ 78
28 (incorporating paragraph 42 by reference into plaintiffs’
67
- ER 302 -
1 constitutional claim). In United States v United States District

2 Court, 407 US 297 (1972) (Keith), the Supreme Court held that the
3 Fourth Amendment does not permit warrantless wiretaps to track
4 domestic threats to national security, id at 321, reaffirmed the
5 “necessity of obtaining a warrant in the surveillance of crimes
6 unrelated to the national security interest,” id at 308, and did
7 not pass judgment “on the scope of the President’s surveillance
8 power with respect to the activities of foreign powers, within or
9 without this country,” id. Because the alleged dragnet here
10 encompasses the communications of “all or substantially all of the
11
communications transmitted through [AT&T’s] key domestic

12
telecommunications facilities,” it cannot reasonably be said that

13 the program as alleged is limited to tracking foreign powers.
14 Accordingly, AT&T’s alleged actions here violate the constitutional
15 rights clearly established in Keith. Moreover, because “the very
16 action in question has previously been held unlawful,” AT&T cannot
17 seriously contend that a reasonable entity in its position could
18 have believed that the alleged domestic dragnet was legal.
19
20 4
21 Accordingly, the court DENIES AT&T’s instant motion to
22 dismiss on the basis of qualified immunity. The court does not
23 preclude AT&T from raising the qualified immunity defense later in
24 these proceedings, if further discovery indicates that such a
25 defense is merited.
26 //
27 //
28 //
68
- ER 303 -
1 III
2 As this case proceeds to discovery, the court flags a few
3 procedural matters on which it seeks the parties’ guidance. First,
4 while the court has a duty to the extent possible to disentangle
5 sensitive information from nonsensitive information, see Ellsberg,
6 709 F2d at 57, the court also must take special care to honor the
7 extraordinary security concerns raised by the government here. To
8 help perform these duties, the court proposes appointing an expert
9 pursuant to FRE 706 to assist the court in determining whether
10 disclosing particular evidence would create a “reasonable danger”
11
of harming national security. See FRE 706(a) (“The court may on

12
its own motion or on the motion of any party enter an order to show
13 cause why expert witnesses should not be appointed, and may request
14 the parties to submit nominations. The court may appoint any
15 expert witnesses agreed upon by the parties, and may appoint expert
16 witnesses of its own selection.”). Although other courts do not
17 appear to have used FRE 706 experts in the manner proposed here,
18 this procedural innovation seems appropriate given the complex and
19 weighty issues the court will confront in navigating any future
20 privilege assertions. See Ellsberg, 709 F2d at 64 (encouraging
21 “procedural innovation” in addressing state secrets issues);
22 Halpern, 258 F2d at 44 (“A trial in camera in which the privilege
23 relating to state secrets may not be availed of by the United
24 States is permissible, if, in the judgment of the district court,
25 such a trial can be carried out without substantial risk that
26 secret information will be publicly divulged”).
27 //
28 //
69
- ER 304 -
1 The court contemplates that the individual would be one

2 who had a security clearance for receipt of the most highly
3 sensitive information and had extensive experience in intelligence
4 matters. This individual could perform a number of functions;
5 among others, these might include advising the court on the risks
6 associated with disclosure of certain information, the manner and
7 extent of appropriate disclosures and the parties’ respective
8 contentions. While the court has at least one such individual in
9 mind, it has taken no steps to contact or communicate with the
10 individual to determine availability or other matters. This is an
11
appropriate subject for discussion with the parties.

12
The court also notes that should it become necessary for

13 the court to review additional classified material, it may be
14 preferable for the court to travel to the location of those
15 materials than for them to be hand-carried to San Francisco. Of
16 course, a secure facility is available in San Francisco and was
17 used to house classified documents for a few days while the court
18 conducted its in camera review for purposes of the government’s
19 instant motion. The same procedures that were previously used
20 could be employed again. But alternative procedures may also be
21 used and may in some instances be more appropriate.
22 Finally, given that the state secrets issues resolved
23 herein represent controlling questions of law as to which there is
24 a substantial ground for difference of opinion and that an
25 immediate appeal may materially advance ultimate termination of the
26 litigation, the court certifies this order for the parties to apply
27 for an immediate appeal pursuant to 28 USC § 1292(b). The court
28 notes that if such an appeal is taken, the present proceedings do
70
- ER 305 -
1 not necessarily have to be stayed. 28 USC § 1292(b)

2 (“[A]pplication for an appeal hereunder shall not stay proceedings
3 in the district court unless the district judge or the Court of
4 Appeals or a judge thereof shall so order.”). At the very least,
5 it would seem prudent for the court to select the expert pursuant
6 to FRE 706 prior to the Ninth Circuit’s review of this matter.
7 Accordingly, the court ORDERS the parties to SHOW CAUSE
8 in writing by July 31, 2006, why it should not appoint an expert
9 pursuant to FRE 706 to assist in the manner stated above. The
10 responses should propose nominees for the expert position and
11
should also state the parties’ views regarding the means by which
12
the court should review any future classified submissions.

13 Moreover, the parties should describe what portions of this case,
14 if any, should be stayed if this order is appealed.
15 //
16 //
17 //
18 //
19 //
20 //
21 //
22 //
23 //
24 //
25 //
26 //
27 //
28 //
71
- ER 306 -
1 IV
2 In sum, the court DENIES the government’s motion to
3 dismiss, or in the alternative, for summary judgment on the basis
4 of state secrets and DENIES AT&T’s motion to dismiss. As noted in
5 section III, supra, the parties are ORDERED TO SHOW CAUSE in
6 writing by July 31, 2006, why the court should not appoint an
7 expert pursuant to FRE 706 to assist the court. The parties’
8 briefs should also address whether this action should be stayed
9 pending an appeal pursuant to 28 USC § 1292(b).
10 The parties are also instructed to appear on August 8,
11
2006, at 2 PM, for a further case management conference.

12
13 IT IS SO ORDERED.
14
15
16 VAUGHN R WALKER
17 United States District Chief Judge
18
19
20
21
22
23
24
25
26
27
28
72
- ER 307 -
439 F.Supp.2d 974 Page 1
439 F.Supp.2d 974
(Cite as: 439 F.Supp.2d 974)
Motions denied.
Briefs and Other Related Documents West Headnotes
Hepting v. AT & T Corp.N.D.Cal.,2006. [1] Witnesses 410 216(1)
United States District Court,N.D. California.
Tash HEPTING, et al, Plaintiffs, 410 Witnesses
v. 410II Competency
AT & T CORPORATION, et al, Defendants. 410II(D) Confidential Relations and Privileged
No C-06-672 VRW. Communications
410k216 Communications to or Information Ac-
July 20, 2006. quired by Public Officers
410k216(1) k. In General; Official or Gov-
Background: Customers brought action against telecom- ernmental Privilege. Most Cited Cases
munications provider, alleging constitutional and statutory “State secrets privilege” is a common law evidentiary rule
violations in connection with provider's alleged participa- that protects information from discovery when disclosure
tion in government's alleged warrantless surveillance pro- would be inimical to the national security.
grams that tracked domestic and foreign communications
and communications records. Provider moved to dismiss, [2] Witnesses 410 216(1)
and after moving to intervene as a defendant, government
moved to dismiss or for summary judgment based on the 410 Witnesses
state secrets privilege. 410II Competency
410II(D) Confidential Relations and Privileged
Holdings: After ruling that it could not proceed until it Communications
conducted in camera examination of classified docu- 410k216 Communications to or Information Ac-
ments, 2006 WL 1581965, the District Court, Walker, quired by Public Officers
Chief Judge, held that: 410k216(1) k. In General; Official or Gov-
ernmental Privilege. Most Cited Cases
(1) state secrets privilege did not categorically bar action; Where there is a strong showing of necessity, claim of
state secrets privilege should not be lightly accepted, but
(2) subject matter of action was not a state secret;
even the most compelling necessity cannot overcome the
(3) state secrets privilege would not prevent provider from claim of privilege if the court is ultimately satisfied that
disclosing whether it received a certification authorizing military secrets are at stake.
its assistance to the government as defense;
[3] Witnesses 410 216(1)
(4) statutory privileges did not bar action;
410 Witnesses
(5) customers sufficiently alleged injury-in-fact to estab- 410II Competency
lish Article III standing; 410II(D) Confidential Relations and Privileged
Communications
(6) purported common law immunity accorded telecom- 410k216 Communications to or Information Ac-
munications providers for cooperating with government quired by Public Officers
officials conducting surveillance activities did not bar ac- 410k216(1) k. In General; Official or Gov-
tion; and ernmental Privilege. Most Cited Cases
First step in determining whether a piece of information
(7) qualified immunity doctrine did not extend to pro- constitutes a “state secret” for purposes of the state secrets
vider. privilege is determining whether that information actually
is a “secret.”
- ER 308 -
© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.
439 F.Supp.2d 974
[4] Witnesses 410 216(1) public evidence that might otherwise be inadmissible at
trial because it does not comply with the technical re-
410 Witnesses quirements of the rules of evidence. Fed.Rules Evid.Rule
410II Competency 104(a), 28 U.S.C.A.
Communications [7] Witnesses 410 216(1)
quired by Public Officers 410 Witnesses
410k216(1) k. In General; Official or Gov- 410II Competency
ernmental Privilege. Most Cited Cases 410II(D) Confidential Relations and Privileged
Simply because a factual statement has been publicly Communications
made does not necessarily mean that the facts it relates are 410k216 Communications to or Information Ac-
true and are not a secret for purposes of the state secrets quired by Public Officers
privilege. 410k216(1) k. In General; Official or Gov-
[5] Witnesses 410 216(1) State secrets privilege did not categorically bar action
against government and telecommunications provider
410 Witnesses based on alleged warrantless surveillance programs that
410II Competency tracked domestic and foreign communications and com-
410II(D) Confidential Relations and Privileged munications records; government had disclosed the gener-
Communications al contours of a “terrorist surveillance program,” which
410k216 Communications to or Information Ac- required the assistance of a telecommunications provider,
quired by Public Officers and provider claimed that it lawfully and dutifully assisted
410k216(1) k. In General; Official or Gov- the government in classified matters when asked.
In determining whether a factual statement is a secret for [8] Witnesses 410 216(1)
purposes of the state secrets privilege, the court should
look only at publicly reported information that possesses 410 Witnesses
substantial indicia of reliability and whose verification or 410II Competency
substantiation possesses the potential to endanger national 410II(D) Confidential Relations and Privileged
security; that entails assessing the value of the informa- Communications
tion to an individual or group bent on threatening the se- 410k216 Communications to or Information Ac-
curity of the country, as well as the secrecy of the inform- quired by Public Officers
ation. 410k216(1) k. In General; Official or Gov-
[6] Witnesses 410 216(1) Subject matter of action against government and telecom-
munications provider, based on alleged warrantless sur-
410 Witnesses veillance program that tracked domestic and foreign com-
410II Competency munications and communications records, was not a state
410II(D) Confidential Relations and Privileged secret, as required for state secrets privilege to bar action;
Communications significant amounts of information about the govern-
410k216 Communications to or Information Ac- ment's monitoring of communication content and pro-
quired by Public Officers vider's intelligence relationship with the government were
410k216(1) k. In General; Official or Gov- already nonclassified or in the public record.
In determining whether information that the government [9] Witnesses 410 216(1)
contends is a secret is actually a secret for purposes of the
state secrets privilege, the court may rely upon reliable 410 Witnesses
410II Competency
- ER 309 -
439 F.Supp.2d 974
410II(D) Confidential Relations and Privileged Most Cited Cases

Communications
410k216 Communications to or Information Ac- Federal Civil Procedure 170A 103.3
quired by Public Officers
170A Federal Civil Procedure
170AII Parties
170AII(A) In General
Government's warrantless monitoring of contents of com-
170Ak103.1 Standing
munications with parties outside the United States linked
170Ak103.3 k. Causation; Redressability.
to terrorist organizations was not a state secret, and thus
Most Cited Cases
state secrets privilege would not prevent telecommunica-
To establish standing under Article III, a plaintiff must
tions provider from disclosing whether it received a certi-
satisfy three elements: (1) plaintiff must have suffered an
fication authorizing its assistance to the government as
injury in fact, an invasion of a legally protected interest
defense in action based on its participation in alleged war-
which is concrete and particularized and actual or immin-
rantless surveillance program; government has opened the
ent, not conjectural or hypothetical, (2) there must be a
door for judicial inquiry by publicly confirming and deny-
causal connection between the injury and the conduct
ing material information about its monitoring of commu-
complained of and (3) it must be likely, as opposed to
nication content. 18 U.S.C.A. § 2511(2)(a)(ii).
merely speculative, that the injury will be redressed by a
[10] Witnesses 410 216(1) favorable decision. U.S.C.A. Const. Art. 3, § 1 et seq.
410 Witnesses [12] Federal Civil Procedure 170A 103.2

410II Competency
170AII Parties
Communications
170Ak103.1 Standing
quired by Public Officers
170Ak103.2 k. In General; Injury or Interest.
Most Cited Cases
Party invoking federal jurisdiction has the burden of es-
Statutory privileges for information regarding the activit-
tablishing its standing to sue. U.S.C.A. Const. Art. 3, § 1
ies of the National Security Agency (NSA) and intelli-
et seq.
gence sources and methods did not bar action against gov-
ernment and telecommunications provider based on al- [13] Telecommunications 372 1445
leged warrantless surveillance programs that tracked do-
mestic and foreign communications and communications 372 Telecommunications
records; plaintiffs could rely on many non-classified ma- 372X Interception or Disclosure of Electronic Com-
terials including present and future public disclosures of munications; Electronic Surveillance
the government or provider on the alleged NSA programs. 372X(A) In General
National Security Agency Act of 1959, § 6, 50 U.S.C.A. § 372k1442 Actions
402 note; National Security Act of 1947, § 102A(i)(1), 50 372k1445 k. Parties in General; Standing.
U.S.C.A. § 403-1(i)(1). Most Cited Cases
Telecommunications provider's customers sufficiently al-
[11] Federal Civil Procedure 170A 103.2 leged injury-in-fact to establish Article III standing in
their action against government and provider based on al-
leged warrantless surveillance programs that tracked do-
170AII Parties
mestic and foreign communications and communications
records; customers generally described injuries they al-
170Ak103.1 Standing
legedly suffered because of provider's illegal conduct and
170Ak103.2 k. In General; Injury or Interest.
its collaboration with the government, and alleged dragnet
- ER 310 -
439 F.Supp.2d 974
that collected content and records of customers' commu- against provider that allegedly participated in warrantless
nications would have imparted a concrete injury on each surveillance program; common law immunity appeared to
of them. U.S.C.A. Const. Art. 3, § 1 et seq. overlap considerably with protections afforded under sub-
sequently enacted statutory certification provision, and
[14] Federal Civil Procedure 170A 103.5 there was no reason to presume that such immunity was
available simply because Congress has not expressed a
contrary intent. 18 U.S.C.A. § 2511(2)(a)(ii)(B).
170AII Parties
170AII(A) In General [17] Civil Rights 78 1376(2)
170Ak103.1 Standing
170Ak103.5 k. Pleading. Most Cited Cases 78 Civil Rights
At the pleading stage, general factual allegations of injury 78III Federal Remedies in General
resulting from the defendant's conduct may suffice to es- 78k1372 Privilege or Immunity; Good Faith and
tablish standing, for on a motion to dismiss courts pre- Probable Cause
sume that general allegations embrace those specific facts 78k1376 Government Agencies and Officers
that are necessary to support the claim. U.S.C.A. Const. 78k1376(2) k. Good Faith and Reasonable-
Art. 3, § 1 et seq. ness; Knowledge and Clarity of Law; Motive and Intent,
in General. Most Cited Cases
[15] Telecommunications 372 1447 “Qualified immunity” shields state actors from liability
for civil damages insofar as their conduct does not violate
372 Telecommunications
clearly established statutory or constitutional rights of
372X Interception or Disclosure of Electronic Com-
which a reasonable person would have known.
munications; Electronic Surveillance
372X(A) In General [18] Officers and Public Employees 283 114
372k1442 Actions
372k1447 k. Pleading. Most Cited Cases 283 Officers and Public Employees
Even if telecommunications provider's customers were re- 283III Rights, Powers, Duties, and Liabilities
quired to plead affirmatively that provider did not receive 283k114 k. Liabilities for Official Acts. Most Cited
a certification from government authorizing it to conduct Cases
electronic surveillance in support of their action based on Qualified immunity strikes a balance between compensat-
provider's alleged participation in alleged warrantless sur- ing those who have been injured by official conduct and
veillance programs, customers sufficiently alleged that protecting government's ability to perform its traditional
provider acted outside scope of any government certifica- functions.
tion it might have received, where they alleged that com-
munications were intercepted without judicial or other [19] Civil Rights 78 1376(1)
lawful authorization. 18 U.S.C.A. §§ 2511(2)(a)(ii)(B),
78 Civil Rights
2520(a).
78III Federal Remedies in General
[16] Telecommunications 372 1441 78k1372 Privilege or Immunity; Good Faith and
Probable Cause
372 Telecommunications 78k1376 Government Agencies and Officers
372X Interception or Disclosure of Electronic Com- 78k1376(1) k. In General. Most Cited Cases
372X(A) In General Civil Rights 78 1376(2)
372k1441 k. Persons Liable; Immunity. Most
78 Civil Rights
Cited Cases
78III Federal Remedies in General
Purported common law immunity accorded telecommu-
78k1372 Privilege or Immunity; Good Faith and
nications providers for cooperating with government offi-
Probable Cause
cials conducting surveillance activities did not bar action
- ER 311 -
439 F.Supp.2d 974
78k1376 Government Agencies and Officers [22] Officers and Public Employees 283 114
78k1376(2) k. Good Faith and Reasonable-
ness; Knowledge and Clarity of Law; Motive and Intent, 283 Officers and Public Employees
in General. Most Cited Cases 283III Rights, Powers, Duties, and Liabilities
At the pleadings stage, qualified immunity analysis entails 283k114 k. Liabilities for Official Acts. Most Cited
three steps: first, the court must determine whether, taken Cases
in the light most favorable to the plaintiff, the facts al- Purposes of qualified immunity include: (1) protecting the
leged show a violation of the plaintiffs' statutory or con- public from unwarranted timidity on the part of public of-
stitutional rights; if a violation has been alleged, the court ficials and encouraging the vigorous exercise of official
next determines whether the right infringed was clearly authority; (2) preventing lawsuits from distracting offi-
established at the time of the alleged violation; finally, the cials from their governmental duties; and (3) ensuring that
court assesses whether it would be clear to a reasonable talented candidates are not deterred by the threat of dam-
person in the defendant's position that its conduct was un- ages suits from entering public service.
lawful in the situation it confronted.
[23] Telecommunications 372 1441
[20] Civil Rights 78 1373
78 Civil Rights 372X Interception or Disclosure of Electronic Com-
78III Federal Remedies in General munications; Electronic Surveillance
78k1372 Privilege or Immunity; Good Faith and 372X(A) In General
Probable Cause 372k1441 k. Persons Liable; Immunity. Most
78k1373 k. In General. Most Cited Cases Cited Cases
When a private party seeks to invoke qualified immunity, Telecommunications provider was not entitled to quali-
the court must first decide whether qualified immunity is fied immunity with respect to customers' constitutional
categorically available, which requires an evaluation of claim, based on alleged Fourth Amendment violation
the appropriateness of qualified immunity given its histor- arising when provider allegedly gave the government dir-
ical availability and the policy considerations underpin- ect and indiscriminate access to domestic communications
ning the doctrine; this inquiry is distinct from the question when participating in government's electronic surveillance
whether a nominally private party is a state actor for pur- program; alleged dragnet encompassed communications
poses of a § 1983 or Bivens claim. 42 U.S.C.A. § 1983. of all or substantially all of the communications transmit-
ted through provider's key domestic telecommunications
[21] Telecommunications 372 1441 facilities, and thus was not limited to tracking foreign
powers. U.S.C.A. Const.Amend. 4.
372X Interception or Disclosure of Electronic Com- [24] Witnesses 410 223
372X(A) In General 410 Witnesses
372k1441 k. Persons Liable; Immunity. Most 410II Competency
Cited Cases 410II(D) Confidential Relations and Privileged
Qualified immunity doctrine did not extend to telecom- Communications
munications provider with regard to statutory claims 410k223 k. Determination as to Admissibility.
based on its alleged participation in government's war- Most Cited Cases
rantless surveillance program; no firmly rooted common National security concerns raised by government in action
law immunity existed for telecommunications providers based on telecommunications provider's alleged participa-
assisting the government, and purposes of immunity were tion in government's warrantless electronic surveillance
already served by statutory certification program for pro- program supported appointment of an expert to assist the
viders that conduct electronic surveillance. 18 U.S.C.A. § court in determining whether disclosing particular evid-
2511(2)(a)(ii). ence would create a “reasonable danger” of harming na-
- ER 312 -
439 F.Supp.2d 974
tional security. Fed.Rules Evid.Rule 706(a), 28 U.S.C.A. plaint (Doc # 8(FAC)), filed on February 22, 2006, claims
that AT & T and AT & T Inc have committed violations
*978 Cindy Ann Cohn, Corynne McSherry, Kevin Stuart of:
Bankston, Kurt Opsahl, Electronic Frontier Foundation, (1) The First and Fourth Amendments to the United States
Jeff D. FriedmanElena Maria Dimuzio, Heller Ehrman Constitution (acting as agents or instruments of the gov-
LLP, Eric B. Fastiff, Lieff, Cabraser, Heimann & Bern- ernment) by illegally intercepting, disclosing, divulging
stein, LLP, Eric A. Isaacson, Lerach Coughlin Stoia and/or using plaintiffs' communications;
Geller Rudman & Robbins LLP, Maria V. Morris, Shana (2) Section 109 of Title I of the Foreign Intelligence Sur-
Eve Scarlett, Lerach Coughlin Stoia Geller Rudman & veillance Act of 1978 (FISA), 50 U.S.C. § 1809, by enga-
Robbins LLP, Barry R. Himmelstein, Lieff Cabraser Hei- ging in illegal electronic surveillance of plaintiffs' com-
mann & Bernstein LLP, San Francisco, CA, Bert munications under color of law;
Voorhees, Traber & Voorhees, Pasadena, CA, James *979 (3) Section 802 of Title III of the Omnibus Crime
Samuel Tyre, Culver City, CA, Michael M. Markman, Control and Safe Streets Act of 1968, as amended by sec-
Heller, Ehrman, White & McAuliffe LLP, Menlo Park, tion 101 of Title I of the Electronic Communications Pri-
CA, Robert D. Fram, Heller, Ehrman, White & McAuliffe vacy Act of 1986 (ECPA), 18 U.S.C. §§ 2511(1)(a),
LLP, Reed R. Kathrein, Lerach Coughlin Stoia Geller (1)(c), (1)(d) and (3)(a), by illegally intercepting, disclos-
Rudman & Robbins LLP, Richard Roy Wiebe, Law Of- ing, using and/or divulging plaintiffs' communications;
fice of Richard R. Wiebe, San Francisco, CA, Theresa M. (4) Section 705 of Title VII of the Communications Act
Traber, Esq., Traber & Voorhees, Pasadena, CA, Tze Lee of 1934, as amended, 47 U.S.C. § 605, by unauthorized
Tien, Berkeley, CA, for Plaintiffs. divulgence and/or publication of plaintiffs' communica-
Bruce A. Ericson, David L. Anderson, Jacob R. Sorensen, tions;
Pillsbury Winthrop Shaw Pittman LLP, San Francisco, (5) Section 201 of Title II of the ECPA (“Stored Commu-
CA, David W. Carpenter, Sidley Austin Brown & Wood nications Act”), as amended, 18 U.S.C. §§ 2702(a)(1) and
LLP, Chicago, IL, David L. Lawson, Sidley Austin (a)(2), by illegally divulging the contents of plaintiffs'
Brown & Wood, Edward Robert McNicholas, Bradford communications;
Allan Berenson, Sidley Austin LLP, Andrew H. Tannen- (6) Section 201 of the Stored Communications Act, as
baum, Anthony Joseph Coppolino, Peter D. Keisler, amended by section 212 of Title II of the USA PATRIOT
United State Department of Justice, Civil Division, Feder- Act, 18 U.S.C. § 2702(a)(3), by illegally divulging re-
al Programs Branch, Renee Sharon Orleans, U.S. Depart- cords concerning plaintiffs' communications to a govern-
ment of Justice, Washington, DC, Marc Van Der Hout, mental entity and
Van Der Hout & Brigagliano, San Francisco, CA, James (7) California's Unfair Competition Law, Cal Bus & Prof
J. BrosnahanBrian Martinez Morrison & Foerster LLP Code §§ 17200 et seq, by engaging in unfair, unlawful
San Francisco, CA, Jennifer Stisa Granick, Stanford Law and deceptive business practices.
School Crown Quadrangle, Stanford, CA, Susan A.
FreiwaldUSF School of Law Terry Gross, Gross & Bel- The complaint seeks certification of a class action and re-
sky LLP, Roger R. Myers, Holme Roberts & Owen dress through statutory damages, punitive damages, resti-
LLPLaurence F. PulgramFenwick & West LLP San Fran- tution, disgorgement and injunctive and declaratory relief.
cisco, CA, for Defendants.
Eric Schneider, Delray Beach, FL, pro se. On April 5, 2006, plaintiffs moved for a preliminary in-
junction seeking to enjoin defendants' allegedly illegal
ORDER activity. Doc # 30(MPI). Plaintiffs supported their motion
WALKER, Chief Judge. by filing under seal three documents, obtained by former
Plaintiffs allege that AT & T Corporation (AT & T) and AT & T technician Mark Klein, which allegedly demon-
its holding company, AT & T Inc, are collaborating with strate how AT & T has implemented a warrantless sur-
the National Security Agency (NSA) in a massive war- veillance system on behalf of the NSA at a San Francisco
rantless surveillance program that illegally tracks the do- AT & T facility. Doc # 31, Exs A-C (the “AT & T docu-
mestic and foreign communications and communication ments”). Plaintiffs also filed under seal supporting declar-
records of millions of Americans. The first amended com- ations from Klein (Doc # 31) and J Scott Marcus (Doc #
- ER 313 -
439 F.Supp.2d 974
32), a putative expert who reviewed the AT & T docu- The court first addresses the government's motion to dis-
ments and the Klein declaration. miss or, alternatively, for judgment on state secrets
grounds. After exploring the history and principles under-
On April 28, 2006, AT & T moved to dismiss this case. lying the state secrets privilege and summarizing the gov-
Doc # 86 (AT & T MTD). AT & T contends that ernment's arguments, the court turns to whether the state
plaintiffs lack standing and were required but failed to secrets privilege applies and requires dismissal of this ac-
plead affirmatively that AT & T did not receive a govern- tion or immediate entry of judgment in favor of defend-
ment certification pursuant to 18 U.S.C. § ants. The court then takes up how the asserted privilege
2511(2)(a)(ii)(B). AT & T also contends it is entitled to bears on plaintiffs' discovery request for any government
statutory, common law and qualified immunity. certification that AT & T might have received authorizing
the alleged surveillance activities. Finally, the court ad-
On May 13, 2006, the United States moved to intervene
dresses the statutory privileges raised by the government.
as a defendant and moved for dismissal or, alternatively,
for summary judgment based on the state secrets priv- A
ilege. Doc # 124-1 (Gov MTD). The government suppor-
ted its assertion of the state secrets privilege with public [1] “The state secrets privilege is a common law eviden-
declarations from the Director of National Intelligence, tiary rule that protects information from discovery when
John D Negroponte (Doc # 124-2 (Negroponte Decl)), disclosure would be inimical to the national security. Al-
and the Director of the NSA, Keith B Alexander (Doc # though the exact origins of the privilege are not certain,
124-3 (Alexander Decl)), and encouraged the court to re- the privilege in this country has its initial roots in Aaron
view additional classified submissions in camera and ex Burr's trial for treason, and has its modern roots in United
parte. The government also asserted two statutory priv- States v. Reynolds, 345 U.S. 1, 73 S.Ct. 528, 97 L.Ed. 727
ileges under 50 U.S.C. § 402 note and 50 U.S.C. § (1953).” In re United States, 872 F.2d 472, 474-75
403-1(i)(1). (D.C.Cir.1989) (citations omitted and altered). In his trial
for treason, Burr moved for a subpoena duces tecum or-
At a May 17, 2006, hearing, the court requested additional dering President Jefferson to produce a letter by General
briefing from the parties addressing (1) whether this case James Wilkinson. United States v. Burr, 25 F.Cas. 30, 32
could be decided without resolving the state secrets issue, (C.C.D.Va.1807). Responding to the government's argu-
thereby obviating any need for the court to review the ment “that the letter contains material which ought not to
government's classified submissions and (2) whether the be disclosed,” Chief Justice Marshall riding circuit noted,
state secrets issue is implicated by an FRCP 30(b)(6) de- “What ought to be done under such circumstances
position request for information about any certification presents a delicate question, the discussion of which, it is
that AT & T may have received from the government au- hoped, will never be rendered necessary in this country.”
thorizing the alleged wiretapping activities. Based on the Id. at 37. Although the court issued the subpoena, id. at
parties' submissions,*980 the court concluded in a June 6, 37-38, it noted that if the letter “contain[s] any matter
2006, order that this case could not proceed and discovery which it would be imprudent to disclose, which it is not
could not commence until the court examined in camera the wish of the executive to disclose, such matter, if it be
and ex parte the classified documents to assess whether not immediately and essentially applicable to the point,
and to what extent the state secrets privilege applies. Doc will, of course, be suppressed.” Id. at 37.
# 171.
The actions of another president were at issue in Totten v.
After performing this review, the court heard oral argu- United States, 92 U.S. 105, 23 L.Ed. 605 (1876), in which
ment on the motions to dismiss on June 23, 2006. For the the Supreme Court established an important precursor to
reasons discussed herein, the court DENIES the govern- the modern-day state secrets privilege. In that case, the
ment's motion to dismiss and DENIES AT & T's motion administrator of a former spy's estate sued the government
to dismiss. based on a contract the spy allegedly made with President
Lincoln to recover compensation for espionage services
I
rendered during the Civil War. Id. at 105-06. The Totten
- ER 314 -
439 F.Supp.2d 974
Court found the action to be barred: government under the Federal Tort Claims Act and sought
The service stipulated by the contract was a secret ser- discovery of the Air Force's official accident investiga-
vice; the information sought was to be obtained clandes- tion. Id. at 2-3, 73 S.Ct. 528. The Secretary of the Air
tinely, and was to be communicated privately; the em- Force filed a formal “Claim of Privilege” and the govern-
ployment and the service were to be equally concealed. ment refused to produce the relevant documents to the
Both employer and agent must have understood that the court for in camera review. Id. at 4-5, 73 S.Ct. 528. The
lips of the other were to be for ever sealed respecting the district court deemed as established facts regarding negli-
relation of either to the matter. This condition of the en- gence and entered judgment for plaintiffs. Id. at 5, 73
gagement was implied from the nature of the employ- S.Ct. 528. The Third Circuit affirmed and the Supreme
ment, and is implied *981 in all secret employments of Court granted certiorari to determine “whether there was a
the government in time of war, or upon matters affecting valid claim of privilege under [FRCP 34].” Id. at 6, 73
our foreign relations, where a disclosure of the service S.Ct. 528. Noting this country's theretofore limited judi-
might compromise or embarrass our government in its cial experience with “the privilege which protects military
public duties, or endanger the person or injure the charac- and state secrets,” the court stated:
ter of the agent. The privilege belongs to the Government and must be as-
serted by it * * *. It is not to be lightly invoked. There
Id. at 106, quoted in Tenet v. Doe, 544 U.S. 1, 7-8, 125 must be a formal claim of privilege, lodged by the head of
S.Ct. 1230, 161 L.Ed.2d 82 (2005). Hence, given the the department which has control over the matter, after
secrecy implied in such a contract, the Totten Court actual personal consideration by that officer. The court it-
“thought it entirely incompatible with the nature of such a self must determine whether the circumstances are appro-
contract that a former spy could bring suit to enforce it.” priate for the claim of privilege, and yet do so without for-
Tenet, 544 U.S. at 8, 125 S.Ct. 1230. Additionally, the cing a disclosure of the very thing the privilege is de-
Totten Court observed:It may be stated as a general prin- signed to protect.
ciple, that public policy forbids the maintenance of any
suit in a court of justice, the trial of which would inevit- Id. at 7-8, 73 S.Ct. 528 (footnotes omitted). The latter de-
ably lead to the disclosure of matters which the law itself termination requires a “formula of compromise,” as
regards as confidential, and respecting which it will not “[j]udicial control over the evidence in a case cannot be
allow the confidence to be violated. * * * Much greater abdicated to the caprice of executive officers,” yet a court
reason exists for the application of the principle to cases may not “automatically require a complete disclosure to
of contract for secret services with the government, as the the judge before the claim of privilege will be accepted in
existence of a contract of that kind is itself a fact not to be any case.” Id. at 9-10, 73 S.Ct. 528. Striking this balance,
disclosed. the Supreme Court held that the “occasion for the priv-
ilege is appropriate” when a court is satisfied *982 “from
Totten, 92 U.S. at 107. Characterizing this aspect of Tot- all the circumstances of the case, that there is a reasonable
ten, the Supreme Court has noted, “No matter the clothing danger that compulsion of the evidence will expose milit-
in which alleged spies dress their claims, Totten precludes ary matters which, in the interest of national security,
judicial review in cases such as [plaintiffs'] where success should not be divulged.” Id. at 10, 73 S.Ct. 528.
depends upon the existence of their secret espionage rela-
tionship with the Government.” Tenet, 544 U.S. at 8, 125 [2] The degree to which the court may “probe in satisfy-
S.Ct. 1230. “Totten's core concern” is “preventing the ex- ing itself that the occasion for invoking the privilege is
istence of the [alleged spy's] relationship with the Govern- appropriate” turns on “the showing of necessity which is
ment from being revealed.” Id. at 10, 125 S.Ct. 1230. made” by plaintiffs. Id. at 11, 73 S.Ct. 528. “Where there
is a strong showing of necessity, the claim of privilege
In the Cold War era case of United States v. Reynolds, should not be lightly accepted, but even the most compel-
345 U.S. 1, 73 S.Ct. 528, 97 L.Ed. 727 (1953), the Su- ling necessity cannot overcome the claim of privilege if
preme Court first articulated the state secrets privilege in the court is ultimately satisfied that military secrets are at
its modern form. After a B-29 military aircraft crashed stake.” Id. Finding both a “reasonable danger that the ac-
and killed three civilian observers, their widows sued the cident investigation report would contain” state secrets
- ER 315 -
439 F.Supp.2d 974
and a “dubious showing of necessity,” the court reversed would disclose NSA capabilities and other valuable intel-
the Third Circuit's decision and sustained the claim of ligence information to a sophisticated intelligence ana-
privilege. Id. at 10-12, 73 S.Ct. 528. lyst.” Id. at 10. On remand, the district court dismissed
plaintiffs' claims against the NSA and individuals connec-
In Halkin v. Helms, 598 F.2d 1 (D.C.Cir.1978) (Halkin I ted with the NSA's alleged monitoring. Plaintiffs were left
), the District of Columbia Circuit applied the principles with claims against the Central Intelligence Agency (CIA)
enunciated in Reynolds in an action alleging illegal NSA and individuals who had allegedly submitted watchlists to
wiretapping. Former Vietnam War protestors contended the NSA on the presumption that the submission resulted
that “the NSA conducted warrantless interceptions of in interception of plaintiffs'*983 communications. The
their international wire, cable and telephone communica- district court eventually dismissed the CIA-related claims
tions” at the request of various federal defendants and as well on state secrets grounds and the case went up
with the cooperation of telecommunications providers. Id. again to the court of appeals.
at 3. Plaintiffs challenged two separate NSA operations:
operation MINARET, which was “part of [NSA's] regular The District of Columbia Circuit stated that the state
signals intelligence activity in which foreign electronic secrets inquiry “is not a balancing of ultimate interests at
signals were monitored,” and operation SHAMROCK, stake in the litigation,” but rather “whether the showing of
which involved “processing of all telegraphic traffic leav- the harm that might reasonably be seen to flow from dis-
ing or entering the United States.” Id. at 4. closure is adequate in a given case to trigger the absolute
right to withhold the information sought in that case.”
The government moved to dismiss on state secrets Halkin v. Helms, 690 F.2d 977, 990 (D.C.Cir.1982)
grounds, arguing that civil discovery would impermiss- (Halkin II ). The court then affirmed dismissal of “the
ibly “(1) confirm the identity of individuals or organiza- claims for injunctive and declaratory relief against the
tions whose foreign communications were acquired by CIA defendants based upon their submission of plaintiffs'
NSA, (2) disclose the dates and contents of such commu- names on ‘watchlists' to NSA.” Id. at 997 (emphasis omit-
nications, or (3) divulge the methods and techniques by ted). The court found that plaintiffs lacked standing given
which the communications were acquired by NSA.” Id. at the court's “ruling in Halkin I that evidence of the fact of
4-5. After plaintiffs “succeeded in obtaining a limited acquisition of plaintiffs' communications by NSA cannot
amount of discovery,” the district court concluded that be obtained from the government, nor can such fact be
plaintiffs' claims challenging operation MINARET could presumed from the submission of watchlists to that
not proceed because “the ultimate issue, the fact of ac- Agency.” Id. at 999 (emphasis omitted).
quisition, could neither be admitted nor denied.” Id. at 5.
The court denied the government's motion to dismiss on In Ellsberg v. Mitchell, 709 F.2d 51 (D.C.Cir.1983), the
claims challenging operation SHAMROCK because the District of Columbia Circuit addressed the state secrets
court “thought congressional committees investigating in- privilege in another wiretapping case. Former defendants
telligence matters had revealed so much information and attorneys in the “Pentagon Papers” criminal prosecu-
about SHAMROCK that such a disclosure would pose no tion sued individuals who allegedly were responsible for
threat to the NSA mission.” Id. at 10. conducting warrantless electronic surveillance. Id. at
52-53. In response to plaintiffs' interrogatories, defendants
On certified appeal, the District of Columbia Circuit admitted to two wiretaps but refused to answer other
noted that even “seemingly innocuous” information is questions on the ground that the requested information
privileged if that information is part of a classified was privileged. Id. at 53. The district court sustained the
“mosaic” that “can be analyzed and fitted into place to re- government's formal assertion of the state secrets priv-
veal with startling clarity how the unseen whole must op- ilege and dismissed plaintiffs' claims pertaining to foreign
erate.” Id. at 8. The court affirmed dismissal of the claims communications surveillance. Id. at 56.
related to operation MINARET but reversed the district
court's rejection of the privilege as to operation SHAM- On appeal, the District of Columbia Circuit noted that
ROCK, reasoning that “confirmation or denial that a par- “whenever possible, sensitive information must be disen-
ticular plaintiff's communications have been acquired tangled from nonsensitive information to allow for the re-
- ER 316 -
439 F.Supp.2d 974
lease of the latter.” Id. at 57. The court generally affirmed utory purpose to the contrary is evident.” Id. at 1167
the district court's decisions regarding the privilege, find- (omissions in original) (citations omitted). Finding no
ing “a ‘reasonable danger’ that revelation of the informa- such purpose, the court held that the statutory exemption
tion in question would either enable a sophisticated ana- did not preempt the state secrets privilege. Id. at 1168.
lyst to gain insights into the nation's intelligence-gather-
ing methods and capabilities or would disrupt diplomatic Kasza also explained that the state secrets privilege can
relations with foreign governments.” Id. at 59. The court require dismissal of a case in three distinct ways. “First,
disagreed with the district court's decision that the priv- by invoking the privilege over particular evidence, the
ilege precluded discovery of the names of the attorneys evidence is completely removed from the case. The
general that authorized the surveillance. Id. at 60. plaintiff's case then goes forward based on evidence not
covered by the privilege. * * * If, after further proceed-
Additionally, responding to plaintiffs' argument that the ings, the plaintiff cannot prove the prima facie elements
district court should have required the government to dis- of her claim with nonprivileged evidence, then the court
close more fully its basis for asserting the privilege, the may dismiss her claim as it would with any plaintiff who
court recognized that “procedural innovation” was within cannot prove her case.” Id. at 1166. Second, “if the priv-
the district court's discretion and noted that “[t]he govern- ilege deprives the defendant of information that would
ment's public statement need be no more (and no less) otherwise give the defendant a valid defense to the claim,
specific than is practicable under the circumstances.” Id. then the court may grant summary judgment to the de-
at 64. fendant.” Id. (internal quotation omitted) (emphasis in ori-
ginal). Finally, and most relevant here, “notwithstanding
In considering the effect of the privilege, the court af- the plaintiff's ability to produce nonprivileged evidence, if
firmed dismissal “with regard to those [individuals] the ‘very subject matter of the action’ is a state secret,
whom the government ha[d] not admitted overhearing.” then the court should dismiss the plaintiff's action based
Id. at 65. But the court did not dismiss the claims relating solely on the invocation of the state secrets privilege.” Id.
to the wiretaps that the government had conceded, noting (quoting Reynolds, 345 U.S. at 11 n. 26, 73 S.Ct. 528).
that there was no reason to “suspend the general rule that See also Reynolds, 345 U.S. at 11 n. 26, 73 S.Ct. 528
the burden is on those seeking an exemption from the (characterizing Totten as a case “where the very subject
Fourth Amendment warrant requirement to show the need matter of the action, a contract to perform espionage, was
for it.” Id. at 68. a matter of state secret. The action was dismissed on the
pleadings without ever reaching the question of evidence,
In Kasza v. Browner, 133 F.3d 1159 (9th Cir.1998), the
since it was so obvious that the action should never pre-
Ninth Circuit issued its definitive opinion on the state
vail over the privilege.”).
secrets privilege. Former employees at a classified United
States Air Force facility brought a *984 citizen suit under According the “utmost deference” to the government's
the Resource Conservation and Recovery Act (RCRA), 42 claim of privilege and noting that even “seemingly innoc-
U.S.C. § 6972, alleging the Air Force violated that act. Id. uous information” could be “part of a classified mosaic,”
at 1162. The district court granted summary judgment id. at 1166, Kasza concluded after in camera review of
against plaintiffs, finding discovery of information related classified declarations “that release of such information
to chemical inventories impossible due to the state secrets would reasonably endanger national security interests.”
privilege. Id. On appeal, plaintiffs argued that an exemp- Id. at 1170. Because “no protective procedure” could sal-
tion in the RCRA preempted the state secrets privilege vage plaintiffs' case, and “the very subject matter of [her]
and even if not preempted, the privilege was improperly action [was] a state secret,” the court affirmed dismissal.
asserted and too broadly applied. Id. at 1167-69. After Id.
characterizing the state secrets privilege as a matter of
federal common law, the Ninth Circuit recognized that More recently, in Tenet v. Doe, 544 U.S. 1, 125 S.Ct.
“statutes which invade the common law * * * are to be 1230, 161 L.Ed.2d 82 (2005), the Supreme Court reaf-
read with a presumption favoring the retention of long- firmed Totten, holding that an alleged former Cold War
established and familiar principles, except when a stat- spy could not sue the government to enforce its obliga-
- ER 317 -
439 F.Supp.2d 974
tions under a covert espionage agreement. Id. at 3, 125 ively deprives AT & T of information necessary to raise
S.Ct. 1230. Importantly, the Court held that Reynolds did valid defenses. Doc # 245-1 (Gov Reply) at 3-5.
not “replac[e] the categorical Totten bar with the balan-
cing of the state secrets evidentiary privilege in the dis- In support of its contention that the very subject matter of
tinct class of cases that depend upon clandestine spy rela- this action is a state secret, the government argues: “AT &
tionships.” Id. at 9-10, 125 S.Ct. 1230. T cannot even confirm or deny the key factual premise
underlying [p]laintiffs' entire case-that AT & T has
Even more recently, in El-Masri v. Tenet, 2006 WL provided any assistance whatsoever to NSA regarding
1391390, 05-cv-01417 (ED Va May 12, 2006), plaintiff foreign-intelligence surveillance. Indeed, in the formula-
sued the former *985 director of the CIA and private cor- tion of Reynolds and Kasza, that allegation is ‘the very
porations involved in a program of “extraordinary rendi- subject of the action.’ ” Id. at 4-5.
tion,” pursuant to which plaintiff was allegedly beaten,
tortured and imprisoned because the government mis- Additionally, the government claims that dismissal is ap-
takenly believed he was affiliated with the al Qaeda ter- propriate because plaintiffs cannot establish a prima facie
rorist organization. Id. at *1-2. The government inter- case for their claims. Contending that plaintiffs
vened “to protect its interests in preserving state secrets.” “persistently confuse speculative allegations and untested
Id. at *3. The court sustained the government's assertion assertions for established facts,” the government attacks
of the privilege: the Klein and Marcus declarations and the various media
[T]he substance of El-Masri's publicly available com- reports that plaintiffs rely on to demonstrate standing. Id.
plaint alleges a clandestine intelligence program, and the at 4. The government also argues that “[e]ven when al-
means and methods the foreign intelligence services of leged facts have been the ‘subject of widespread media
this and other countries used to carry out the program. and public speculation’ based on ‘[u]nofficial leaks and
And, as the public declaration makes pellucidly clear, any public surmise,’ those alleged facts are not actually estab-
admission or denial of these allegations by defendants * * lished in the public domain.” Id. at 8 (quoting Afshar v.
* would present a grave risk of injury to national security. Dept. of State, 702 F.2d 1125, 1130-31 (D.C.Cir.1983)).
Id. at *5. The court also rejected plaintiff's argument “that The government further contends that its “privilege asser-
government officials' public affirmation of the existence” tion covers any information tending to confirm or deny
of the rendition program somehow undercut the claim of (a) the alleged intelligence activities, (b) whether AT & T
privilege because the government's general admission was involved with any such activity, and (c) whether a
provided “no details as to the [program's] means and particular individual's communications were intercepted
methods,” which were “validly claimed as state secrets.” as a result of any such activity.” Gov MTD at 17-18. The
Id. Having validated the exercise of privilege, the court government reasons that “[w]ithout these facts * * *
reasoned that dismissal was required because “any answer [p]laintiffs ultimately will not be able to prove
to the complaint by the defendants risk[ed] the disclosure injury-in-*986 fact and causation,” thereby justifying dis-
of specific details [of the program]” and special discovery missal of this action for lack of standing. Id at 18.
procedures would have been “plainly ineffective where,
The government also notes that plaintiffs do not fall with-
as here, the entire aim of the suit [was] to prove the exist-
in the scope of the publicly disclosed “terrorist surveil-
ence of state secrets.” Id. at *6.
lance program” (see infra I(C)(1)) because “[p]laintiffs do
B not claim to be, or to communicate with, members or af-
filiates of [the] al Qaeda [terrorist organization]-indeed,
Relying on Kasza, the government advances three reasons [p]laintiffs expressly exclude from their purported class
why the state secrets privilege requires dismissing this ac- any foreign powers or agent of foreign powers * * *.” Id.
tion or granting summary judgment for AT & T: (1) the at 18 n. 9 (citing FAC, ¶ 70). Hence, the government con-
very subject matter of this case is a state secret; (2) cludes the named plaintiffs “are in no different position
plaintiffs cannot make a prima facie case for their claims from any other citizen or AT & T subscriber who falls
without classified evidence and (3) the privilege effect- outside the narrow scope of the [terrorist surveillance pro-
- ER 318 -
439 F.Supp.2d 974
gram] but nonetheless disagrees with the program.” Id. to plaintiffs' claims, the court summarizes what has been
(emphasis in original). publicly disclosed about NSA surveillance programs as
well as the AT & T documents and accompanying Klein
Additionally, the government contends that plaintiffs' and Marcus declarations.
Fourth Amendment claim fails because no warrant is re-
quired for the alleged searches. In particular, the govern- 1
ment contends that the executive has inherent constitu-
tional authority to conduct warrantless searches for for- Within the last year, public reports have surfaced on at
eign intelligence purposes, id. at 24 (citing In re Sealed least two different types of alleged NSA surveillance pro-
Case, 310 F.3d 717, 742 (Foreign Int.Surv.Ct.Rev.2002)), grams, neither of which relies on warrants. The New York
and that the warrant requirement does not apply here be- Times disclosed the first such program on December 16,
cause this case involves “special needs” that go beyond a 2005. Doc # 19 (Cohn Decl), Ex J (James Risen and Eric
routine interest in law enforcement, id. at 26. Accord- Lichtblau, Bush Lets U.S. Spy on Callers Without Courts,
ingly, to make a prima facie case, the government asserts The New York Times *987 (Dec 16, 2005)). The following
that plaintiffs would have to demonstrate that the alleged day, President George W Bush confirmed the existence of
searches were unreasonable, which would require a fact- a “terrorist surveillance program” in his weekly radio ad-
intensive inquiry that the government contends plaintiffs dress:
could not perform because of the asserted privilege. Id. at In the weeks following the [September 11, 2001] terrorist
26-27. attacks on our Nation, I authorized the National Security
Agency, consistent with U.S. law and the Constitution, to
The government also argues that plaintiffs cannot estab- intercept the international communications of people with
lish a prima facie case for their statutory claims because known links to Al Qaeda and related terrorist organiza-
plaintiffs must prove “that any alleged interception or dis- tions. Before we intercept these communications, the
closure was not authorized by the Government.” The gov- Government must have information that establishes a
ernment maintains that “[p]laintiffs bear the burden of al- clear link to these terrorist networks.
leging and proving the lack of such authorization,” id. at
21-22, and that they cannot meet that burden because Doc # 20 (Pl Request for Judicial Notice), Ex 1 at 2,
“information confirming or denying AT & T's involve- available at http://
ment in alleged intelligence activities is covered by the www.whitehouse.gov/news/releases/2005/12/print/20051
state secrets assertion.” Id. at 23. 217.html (last visited July 19, 2006). The President also
described the mechanism by which the program is author-
Because “the existence or non-existence of any certifica- ized and reviewed:The activities I authorized are re-
tion or authorization by the Government relating to any viewed approximately every 45 days. Each review is
AT & T activity would be information tending to confirm based on a fresh intelligence assessment of terrorist
or deny AT & T's involvement in any alleged intelligence threats to the continuity of our Government and the threat
activity,” Doc # 145-1 (Gov 5/17/06 Br) at 17, the gov- of catastrophic damage to our homeland. During each as-
ernment contends that its state secrets assertion precludes sessment, previous activities under the authorization are
AT & T from “present[ing] the facts that would constitute reviewed. The review includes approval by our Nation's
its defenses.” Gov Reply at 1. Accordingly, the govern- top legal officials, including the Attorney General and the
ment also argues that the court could grant summary judg- Counsel to the President. I have reauthorized this program
ment in favor of AT & T on that basis. more than 30 times since the September the 11th attacks,
and I intend to do so for as long as our Nation faces a con-
C tinuing threat from Al Qaeda and related groups.
The NSA's activities under this authorization are thor-
[3] The first step in determining whether a piece of in-
oughly reviewed by the Justice Department and NSA's top
formation constitutes a “state secret” is determining
legal officials, including NSA's General Counsel and In-
whether that information actually is a “secret.” Hence, be-
spector General. Leaders in Congress have been briefed
fore analyzing the application of the state secrets privilege
more than a dozen times on this authorization and the
- ER 319 -
439 F.Supp.2d 974
activities conducted under it. Intelligence officials in- activity.” Id. The report indicated a fourth telecommunic-
volved in this activity also receive extensive training to ations company, Qwest Communications International
ensure they perform their duties consistent with the letter Inc, declined to participate in the program. Id. at 2. An at-
and intent of the authorization. torney for Qwest's former CEO, Joseph Nacchio, issued
the following statement:
Id. In the Fall of 2001 * * * while Mr. Nacchio was Chair-
man and CEO of Qwest and was serving pursuant to the
Attorney General Alberto Gonzales subsequently con-
President's appointment as the Chairman of the National
firmed that this program intercepts “contents of commu-
Security Telecommunications Advisory Committee, Qw-
nications where * * * one party to the communication is
est was approached to permit the Government access to
outside the United States” and the government has “a
the private telephone records of Qwest customers.
reasonable basis to conclude that one party to the commu-
Mr Nacchio made inquiry as to whether a warrant or other
nication is a member of al Qaeda, affiliated with al Qaeda,
legal process had been secured in support of that request.
or a member of an organization affiliated with al Qaeda,
When he learned that no such authority had been granted
or working in support of al Qaeda.” Doc # 87 (AT & T
and that there was a disinclination on the part of the au-
Request for Judicial Notice), Ex J at 1 (hereinafter
thorities to use any legal process, including the Special
“12/19/05 Press Briefing”), available at ht-
Court which had been established to handle such matters,
tp://www.whitehouse.gov/news/releases/
Mr. Nacchio concluded that these requests violated the
2005/12/print/20051219-1.html (last visited July 19,
privacy requirements of the Telecommications [sic] Act.
2005). The Attorney General also noted, “This [program]
Accordingly, Mr. Nacchio issued instructions to refuse to
is not about wiretapping everyone. This is a very concen-
comply with these requests. These requests continued
trated, very limited program focused at gaining informa-
throughout Mr. Nacchio's tenure and until his departure in
tion about our enemy.” Id. at 5. The President has also
June of 2002.
made a public statement, of which the court takes judicial
notice, that the government's “international activities Markman Decl, Ex 6.
strictly target al Qaeda and their known affiliates,” “the
government does not listen to domestic phone calls BellSouth and Verizon both issued statements, of which
without court approval” and the government is “not min- the court takes judicial notice, denying their involvement
ing or trolling through the personal lives of millions of in- in the program described in USA Today. BellSouth stated
nocent Americans.” The White House, President Bush in relevant part:
Discusses NSA Surveillance Program (May 11, 2006) As a result of media reports that BellSouth provided
(hereinafter “5/11/06 Statement”), ht- massive amounts of customer calling information under a
tp://www.whitehouse. gov/ contract with the NSA, the Company conducted an intern-
news/releases/2006/05/20060511-1.html (last visited July al review to determine the facts. Based on our review to
19, 2005). date, we have confirmed no such contract exists and we
have not provided bulk customer calling records to the
*988 On May 11, 2006, USA Today reported the exist- NSA.
ence of a second NSA program in which BellSouth Corp.,
Verizon Communications Inc and AT & T were alleged to News Release, BellSouth Statement on Governmental
have provided telephone calling records of tens of mil- Data Collection (May 15, 2006), available at ht-
lions of Americans to the NSA. Doc # 182 (Markman De- tp://bellsouth.mediaroom.com/ in-
cl), Ex 5 at 1 (Leslie Cauley, NSA Has Massive Database dex.php?s=press-releases & item=2860 (last visited July
of Americans' Phone Calls, USA Today (May 11, 2006)). 19, 2006). Although declining to confirm or deny whether
The article did not allege that the NSA listens to or re- it had any relationship to the NSA program acknowledged
cords conversations but rather that BellSouth, Verizon by the President, Verizon stated in relevant part:One of
and AT & T gave the government access to a database of the most glaring and repeated falsehoods in the media re-
domestic communication records that the NSA uses “to porting is the assertion that, in the aftermath of the 9/11
analyze calling patterns in an effort to detect terrorist attacks, Verizon was approached by NSA and entered into
- ER 320 -
439 F.Supp.2d 974
an arrangement to provide the NSA with data from its also Doc # 147 (Redact Klein Decl), ¶ 10 (“The NSA
customers' domestic calls. agent came and met with [Field Support Specialist (FSS) ]
This is false. From the time of the 9/11 attacks until just # 2. FSS # 1 later confirmed to me that FSS # 2 was
four months ago, Verizon had three major businesses-its working on the special job.”); id., ¶ 16 (“In the Fall of
wireline phone business-its wireless company and its dir- 2003, FSS # 1 told me that another NSA agent would
ectory publishing business. It also had its own Internet again visit our office * * * to talk to FSS # 1 in order to
Service Provider and long-distance businesses. Contrary get the latter's evaluation of FSS # 3's suitability to per-
to the media reports, Verizon was not asked by NSA to form the special job that FSS # 2 had been doing. The
provide, nor did Verizon provide, customer phone records NSA agent did come and speak to FSS # 1.”).
from any of these businesses, or *989 any call data from
those records. None of these companies-wireless or wire- Klein then learned about the AT & T documents in Octo-
line-provided customer records or call data. ber 2003, after being transferred to the Folsom Street fa-
cility to oversee the Worldnet Internet room. Ericson De-
See News Release, Verizon Issues Statement on NSA Me- cl, Ex J at 2. One document described how “fiber optic
dia Coverage (May 16, 2006), available at ht- cables from the secret room were tapping into the World-
tp://newscenter.verizon.com/ proactive/news- net circuits by splitting off a portion of the light signal.”
room/release.vtml?id=93450 (last visited July 19, 2006). Id. The other two documents “instructed technicians on
BellSouth and Verizon's denials have been at least some- connecting some of the already in-service circuits to [a]
what substantiated in later reports. Doc # 298 (DiMuzio ‘splitter’ cabinet, which diverts some of the light signal to
Decl), Ex 1 (Lawmakers: NSA Database Incomplete, USA the secret room.” Id. Klein noted the secret room con-
Today (June 30, 2006)). Neither AT & T nor the govern- tained “a Narus STA 6400” and that “Narus STA techno-
ment has confirmed or denied the existence of a program logy is known to be used particularly by government in-
of providing telephone calling records to the NSA. Id. telligence agencies because of its ability to sift through
large amounts of data looking for preprogrammed tar-
2 gets.” Id. Klein also “learned that other such ‘splitter’
cabinets were being installed in other cities, including
Although the government does not claim that the AT & T
Seattle, San Jose, Los Angeles and San Diego.” Id.
documents obtained by Mark Klein or the accompanying
declarations contain classified information (Doc # 284 D
(6/23/06 Transcript) at 76:9-20), those papers remain un-
der seal because AT & T alleges that they contain propri- Based on the foregoing, it might appear that none of the
etary and trade secret information. Nonetheless, much of subject matter in this litigation could be considered a
the information in these papers has already been leaked to secret given that the alleged surveillance programs have
the public or has been revealed in redacted versions of the been so widely reported in the media.
papers. The summary below is based on those already dis-
closed facts. *990 [4] The court recognizes, however, that simply be-
cause a factual statement has been publicly made does not
In a public statement, Klein explained that while working necessarily mean that the facts it relates are true and are
at an AT & T office in San Francisco in 2002, “the site not a secret. The statement also must come from a reliable
manager told me to expect a visit from a National Secur- source. Indeed, given the sheer amount of statements that
ity Agency agent, who was to interview a management- have been made in the public sphere about the alleged
level technician for a special job.” Doc # 43 (Ericson De- surveillance programs and the limited number of permuta-
cl), Ex J at 1. While touring the Folsom Street AT & T fa- tions that such programs could take, it would seem likely
cility in January 2003, Klein “saw a new room being built that the truth about these programs has already been pub-
adjacent to the 4ESS switch room where the public's licly reported somewhere. But simply because such state-
phone calls are routed” and “learned that the person ments have been publicly made does not mean that the
whom the NSA interviewed for the secret job was the per- truth of those statements is a matter of general public
son working to install equipment in this room.” Id. See knowledge and that verification of the statement is harm-
- ER 321 -
439 F.Supp.2d 974
less. under oath that he observed AT & T assisting the NSA in

some capacity and his assertions would appear admissible
[5] In determining whether a factual statement is a secret in connection with the present motions, the inferences
for purposes of the state secrets privilege, the court should Klein draws have been disputed. To accept the Klein de-
look only at publicly reported information that possesses claration at this juncture in connection with the state
substantial indicia of reliability and whose verification or secrets issue would invite attempts to undermine the priv-
substantiation possesses the potential to endanger national ilege by mere assertions of knowledge by an interested
security. That entails assessing the value of the informa- party. Needless to say, this does not reflect that the court
tion to an individual or group bent on threatening the se- discounts Klein's credibility, but simply that what is or is
curity of the country, as well as the secrecy of the inform- not secret depends on what the government and its alleged
ation. operative AT & T and other telecommunications*991
providers have either admitted or denied or is beyond
For instance, if this litigation verifies that AT & T assists
reasonable dispute.
the government in monitoring communication records, a
terrorist might well cease using AT & T and switch to Likewise, the court does not rely on media reports about
other, less detectable forms of communication. Alternat- the alleged NSA programs because their reliability is un-
ively, if this litigation reveals that the communication re- clear. To illustrate, after Verizon and BellSouth denied in-
cords program does not exist, then a terrorist who had volvement in the program described in USA Today in
been avoiding AT & T might start using AT & T if it is a which communication records are monitored, USA Today
more efficient form of communication. In short, when de- published a subsequent story somewhat backing down
ciding what communications channel to use, a terrorist from its earlier statements and at least in some measure
“balanc[es] the risk that a particular method of commu- substantiating these companies' denials. See supra
nication will be intercepted against the operational ineffi- I(C)(1).
ciencies of having to use ever more elaborate ways to cir-
cumvent what he thinks may be intercepted.” 6/23/06 [6] Finally, the court notes in determining whether the
Transcript at 48:14-17 (government attorney). A terrorist privilege applies, the court is not limited to considering
who operates with full information is able to communic- strictly admissible evidence. FRE 104(a) (“Preliminary
ate more securely and more efficiently than a terrorist questions concerning * * * the existence of a privilege * *
who operates in an atmosphere of uncertainty. * shall be determined by the court, subject to the provi-
sions of subdivision (b). In making its determination it is
It is, of course, an open question whether individuals in- not bound by the rules of evidence except those with re-
clined to commit acts threatening the national security en- spect to privileges.”). This makes sense: the issue at bar is
gage in such calculations. But the court is hardly in a pos- not proving a question of liability but rather determining
ition to second-guess the government's assertions on this whether information that the government contends is a
matter or to estimate the risk tolerances of terrorists in secret is actually a secret. In making this determination,
making their communications and hence at this point in the court may rely upon reliable public evidence that
the litigation eschews the attempt to weigh the value of might otherwise be inadmissible at trial because it does
the information. not comply with the technical requirements of the rules of
evidence.
Accordingly, in determining whether a factual statement
is a secret, the court considers only public admissions or With these considerations in mind, the court at last de-
denials by the government, AT & T and other telecommu- termines whether the state secrets privilege applies here.
nications companies, which are the parties indisputably
situated to disclose whether and to what extent the alleged E
programs exist. In determining what is a secret, the court
at present refrains from relying on the declaration of Mark Because this case involves an alleged covert relationship
Klein. Although AT & T does not dispute that Klein was between the government and AT & T, the court first de-
a former AT & T technician and he has publicly declared termines whether to apply the categorical bar to suit es-
- ER 322 -
439 F.Supp.2d 974
tablished by the Supreme Court in Totten v. United States, filiated with al Qaeda, or a member of an organization af-
92 U.S. 105, 23 L.Ed. 605 (1876), acknowledged in filiated with al Qaeda, or working in support of al Qaeda.”
United States v. Reynolds, 345 U.S. 1, 73 S.Ct. 528, 97 12/19/05 Press Briefing at 1.
L.Ed. 727 (1953) and Kasza v. Browner, 133 F.3d 1159
(9th Cir.1998), and reaffirmed in Tenet v. Doe, 544 U.S. Given that the “terrorist surveillance program” tracks
1, 125 S.Ct. 1230, 161 L.Ed.2d 82 (2005). See id. at 6, “calls into the United States or out of the United States,”
125 S.Ct. 1230 (“[A]pplication of the Totten rule of dis- 5/11/06 Statement, it is inconceivable that this program
missal * * * represents the sort of ‘threshold question’ we could exist without the acquiescence and cooperation of
have recognized may be resolved before addressing juris- some telecommunications provider. Although of record
diction.”). The court then examines the closely related here only in plaintiffs' pleading, it is beyond reasonable
questions whether this action must be presently dismissed dispute that “prior to its being acquired by SBC, AT & T
because “the very subject matter of the action” is a state Corp was the second largest Internet provider in the coun-
secret or because the state secrets privilege necessarily try,” FAC, ¶ 26, and “AT & T Corp's bundled local and
blocks evidence essential to plaintiffs' prima facie case or long distance service was available in 46 states, covering
AT & T's defense. See Kasza, 133 F.3d at 1166-67. more than 73 million households,” id., ¶ 25. AT & T's as-
sistance would greatly help the government implement
1 this program. See also id., ¶ 27 (“The new AT & T Inc
constitutes the largest telecommunications provider in the
[7] Although the principles announced in Totten, Tenet, United States and one of the largest in the world.”). Con-
Reynolds and Kasza inform the court's decision here, sidering the ubiquity of AT & T telecommunications ser-
those cases are not strictly analogous to the facts at bar. vices, it is unclear whether this program could even exist
without AT & T's acquiescence and cooperation.
First, the instant plaintiffs were not a party to the alleged
covert arrangement at issue here between AT & T and the Moreover, AT & T's history of cooperating with the gov-
government. Hence, Totten and Tenet are not on point to ernment on such matters is well known. AT & T has re-
the extent they hold that former spies cannot enforce cently disclosed that it “performs various classified con-
agreements with the government because the parties im- tracts, and thousands of its employees hold government
plicitly agreed that such suits would be barred. The impli- security clearances.” FAC, ¶ 29. More recently, in re-
cit notion in Totten was one of equitable estoppel: one sponse to reports on the alleged NSA programs, AT & T
who agrees to conduct covert operations impliedly agrees has disclosed in various statements, of which the court
not to reveal the agreement even if the agreement is takes judicial notice, that it has “an obligation to assist
breached. But AT & T, the alleged spy, is not the plaintiff law enforcement and other government agencies respons-
here. In this case, plaintiffs made no agreement with the ible for protecting the public welfare, whether it be an in-
government and are not bound by any implied covenant dividual or the security interests of the entire nation. * * *
of secrecy. If and when AT & T is asked to help, we do so strictly
within the law and under the most stringent conditions.”
More importantly, unlike the clandestine spy arrange-
News Release, AT & T Statement on Privacy and Legal/
ments in Tenet and Totten, AT & T and the government
Security Issues (May 11, 2006) (emphasis added), avail-
have for all practical purposes already disclosed that AT
able at http://www.sbc.com/gen/press-room?pid=4800 &
& *992 T assists the government in monitoring commu-
cdvn=news & newsarticleid=22285. See also Declan Mc-
nication content. As noted earlier, the government has
Cullagh, CNET News.com, Legal Loophole Emerges in
publicly admitted the existence of a “terrorist surveillance
NSA Spy Program (May 19, 2006) (“Mark Bien, a
program,” which the government insists is completely
spokesman for AT & T, told CNET News.com on Wed-
legal. This program operates without warrants and targets
nesday: ‘Without commenting on or confirming the exist-
“contents of communications where * * * one party to the
ence of the program, we can say that when the govern-
communication is outside the United States” and the gov-
ment asks for our help in protecting national security, and
ernment has “a reasonable basis to conclude that one
the request is within the law, we will provide that assist-
party to the communication is a member of al Qaeda, af-
ance.’ ”), available at http://news.com.com/ Leg-
- ER 323 -
439 F.Supp.2d 974
al+loophole+emerges+in+NSA+spy+program/2100-1028 For all of the above reasons, the court declines to dismiss
-3-6073600.html; Justin Scheck, Plaintiffs Can Keep AT this case based on the categorical Totten/Tenet bar.
& T Papers in Domestic Spying Case, The Recorder (May
18, 2006) (“Marc Bien, a spokesman for AT & T, said he 2
didn't see a settlement on the horizon. ‘When the govern-
[8] The court must also dismiss this case if “the very sub-
ment asks for our help in protecting American security,
ject matter of the action” is a state secret and therefore
and the request is within the law, we provide assistance,’
“any further proceeding * * * would jeopardize national
he said.”), available at http: /
security.” Kasza, 133 F.3d at 1170. As a preliminary mat-
/www.law.com/jsp/article.jsp? id=1147856734796. And
ter, the court agrees that the government has satisfied the
AT & T at least presently believes that any such assist-
three threshold requirements for properly asserting the
ance would be legal if AT & T were simply a passive
state secrets privilege: (1) the head of the relevant depart-
agent of the government or if AT & T received a govern-
ment, Director of National Intelligence John D Negro-
ment certification authorizing the assistance. 6/23/06
ponte (2) has lodged a formal claim of privilege
*993 Transcript at 15:11-21:19. Hence, it appears AT & T
(Negroponte Decl, ¶¶ 9, 13) (3) after personally consider-
helps the government in classified matters when asked
ing the matter (Id., ¶¶ 2, 9, 13). Moreover, the Director of
and AT & T at least currently believes, on the facts as al-
the NSA, Lieutenant General Keith B Alexander, has filed
leged in plaintiffs' complaint, its assistance is legal.
a declaration supporting Director Negroponte's assertion
In sum, the government has disclosed the general con- of the privilege. Alexander Decl, ¶¶ 2, 9.
tours of the “terrorist surveillance program,” which re-
The court does not “balanc[e the] ultimate interests at
quires the assistance of a telecommunications provider,
stake in the litigation.” Halkin II, 690 F.2d at 990. But no
and AT & T claims that it lawfully and dutifully assists
case dismissed because its “very subject matter” was a
the government in classified matters when asked.
state secret involved ongoing, widespread violations of in-
A remaining question is whether, in implementing the dividual constitutional rights, as plaintiffs allege here. In-
“terrorist surveillance program,” the government ever re- deed, most cases in which the “very subject matter” was a
quested the assistance of AT & T, described in these pro- state secret involved classified details about either a
ceedings as the mother of telecommunications “that in a highly technical invention or a covert espionage relation-
very literal way goes all the way back to Alexander Gra- ship. See, e g, Sterling v. Tenet, 416 F.3d 338, 348 (4th
ham Bell summoning his assistant Watson into the room.” Cir.2005) (dismissing Title VII racial discrimination
Id. at 102:11-13. AT & T's assistance in national security claim that “center[ed] around a covert agent's assign-
surveillance is hardly the kind of “secret” that the Totten ments, evaluations, and colleagues”); Kasza, 133 F.3d at
bar and the state secrets privilege were intended to protect 1162-63, 1170 (dismissing RCRA claim regarding facility
or that a potential terrorist would fail to anticipate. reporting and inventory requirements at a classified Air
Force location near Groom Lake, Nevada); Zuckerbraun
The court's conclusion here follows the path set in Halkin v. General Dynamics Corp., 935 F.2d 544, 547-48 (2d
v. Helms and Ellsberg v. Mitchell, the two cases most fac- Cir.1991) (dismissing wrongful death claim implicating
tually similar to the present. The Halkin and Ellsberg classified information about the “design, manufacture,
courts did not preclude suit because of a Totten-based im- performance, functional*994 characteristics, and testing
plied covenant of silence. Although the courts eventually of [weapons] systems and the rules of engagement”);
terminated some or all of plaintiffs' claims because the Fitzgerald v. Penthouse Intl., 776 F.2d 1236, 1242-43
privilege barred discovery of certain evidence (Halkin I, (4th Cir.1985) (dismissing libel suit “charging the
598 F.2d at 10; Halkin II, 690 F.2d at 980, 987-88; Ells- plaintiff with the unauthorized sale of a top secret marine
berg, 709 F.2d at 65), the courts did not dismiss the cases mammal weapons system”); Halpern v. United States,
at the outset, as would have been required had the Totten 258 F.2d 36, 44 (2d Cir.1958) (rejecting government's
bar applied. Accordingly, the court sees no reason to ap- motion to dismiss in a case involving a patent with milit-
ply the Totten bar here. ary applications withheld under a secrecy order); Clift v.
United States, 808 F.Supp. 101, 111 (D.Conn.1991)
- ER 324 -
439 F.Supp.2d 974
(dismissing patent dispute over a cryptographic encoding will bar evidence necessary for plaintiffs' prima facie case
device). or AT & T's defense. Because of the public disclosures by
the government and AT & T, the court cannot conclude
By contrast, the very subject matter of this action is that merely maintaining this action creates a “reasonable
hardly a secret. As described above, public disclosures by danger” of harming national security. Accordingly, based
the government and AT & T indicate that AT & T is as- on the foregoing, the court DENIES the government's mo-
sisting the government to implement some kind of sur- tion to dismiss.
veillance program. See supra I(E)(1).
F
For this reason, the present action is also different from
El-Masri v. Tenet, the recently dismissed case challenging The court hastens to add that its present ruling should not
the government's alleged “extraordinary rendition pro- suggest that its in camera, ex parte review of the classi-
gram.” In El-Masri, only limited sketches of the alleged fied documents confirms the truth of the particular allega-
program had been disclosed and the whole object of the tions in plaintiffs' complaint. Plaintiffs allege a surveil-
suit was to reveal classified details regarding “the means lance program of far greater scope than the publicly dis-
and methods the foreign intelligence services of this and closed “terrorist surveillance program.” The existence of
other countries used to carry out the program.” El-Masri, this alleged program and AT & *995 T's involvement, if
2006 WL 1391390, *5. By contrast, this case focuses only any, remain far from clear. And as in Halkin v. Helms, it
on whether AT & T intercepted and disclosed communic- is certainly possible that AT & T might be entitled to
ations or communication records to the government. And summary judgment at some point if the court finds that
as described above, significant amounts of information the state secrets privilege blocks certain items of evidence
about the government's monitoring of communication that are essential to plaintiffs' prima facie case or AT &
content and AT & T's intelligence relationship with the T's defense. The court also recognizes that legislative or
government are already nonclassified or in the public re- other developments might alter the course of this litiga-
cord. tion.
3 But it is important to note that even the state secrets priv-

ilege has its limits. While the court recognizes and re-
The court also declines to decide at this time whether this spects the executive's constitutional duty to protect the na-
case should be dismissed on the ground that the govern- tion from threats, the court also takes seriously its consti-
ment's state secrets assertion will preclude evidence ne- tutional duty to adjudicate the disputes that come before
cessary for plaintiffs to establish a prima facie case or for it. See Hamdi v. Rumsfeld, 542 U.S. 507, 536, 124 S.Ct.
AT & T to raise a valid defense to the claims. Plaintiffs 2633, 159 L.Ed.2d 578 (2004) (plurality opinion)
appear to be entitled to at least some discovery. See infra (“Whatever power the United States Constitution envi-
I(G)(3). It would be premature to decide these issues at sions for the Executive in its exchanges with other nations
the present time. In drawing this conclusion, the court is or with enemy organizations in times of conflict, it most
following the approach of the courts in Halkin v. Helms assuredly envisions a role for all three branches when in-
and Ellsberg v. Mitchell; these courts did not dismiss dividual liberties are at stake.”). To defer to a blanket as-
those cases at the outset but allowed them to proceed to sertion of secrecy here would be to abdicate that duty,
discovery sufficiently to assess the state secrets privilege particularly because the very subject matter of this litiga-
in light of the facts. The government has not shown why tion has been so publicly aired. The compromise between
that should not be the course of this litigation. liberty and security remains a difficult one. But dismiss-
ing this case at the outset would sacrifice liberty for no
4
apparent enhancement of security.
In sum, for much the same reasons that Totten does not
G
preclude this suit, the very subject matter of this action is
not a “secret” for purposes of the state secrets privilege The government also contends the issue whether AT & T
and it would be premature to conclude that the privilege
- ER 325 -
439 F.Supp.2d 974
received a certification authorizing its assistance to the munications are being monitored, (2) the locations of
government is a state secret. Gov 5/17/06 Br at 17. those individuals and (3) the types of information being
monitored:
1
The procedural requirements and impact of a certification

under Title III are addressed in 18 U.S.C. § 2511(2)(a)(ii):
Notwithstanding any other law, providers of wire or elec-
tronic communication service, their officers, employees,
and agents, * * * are authorized to provide information,
facilities, or technical assistance to persons authorized by
law to intercept wire, oral, or electronic communications
or to conduct electronic surveillance, as defined in section
101 of [FISA] * * * if such provider, its officers, employ-
ees, or agents, * * * has been provided with-* * *
(B) a certification in writing by a person specified in sec-
tion 2518(7) of this title [18 U.S.C.S. § 2518(7) ] or the
Attorney General of the United States that no warrant or
court order is required by law, that all statutory require-
ments have been met, and that the specified assistance is
required * * *.
Although it is doubtful whether plaintiffs' constitutional

claim would be barred by a valid certification under sec-
tion 2511(2)(a)(ii), this provision on its face makes clear
that a valid certification would preclude the statutory
claims asserted here. See 18 U.S.C. § 2511(2)(a)(ii) (“No
cause of action shall lie in any court against any provider
of wire or electronic communication service * * * for
providing information, facilities, or assistance in accord-
ance with the terms of a * * * certification under this
chapter.”).
As noted above, it is not a secret for purposes of the state

secrets privilege that AT & T and the government have
some kind of intelligence relationship. See supra I(E)(1).
Nonetheless, the court recognizes that uncovering wheth-
er and to what extent a certification exists might reveal in-
formation about AT & T's assistance to the government
that has not been publicly disclosed. Accordingly, in ap-
plying*996 the state secrets privilege to the certification
question, the court must look deeper at what information
has been publicly revealed about the alleged electronic
surveillance programs. The following chart summarizes
what the government has disclosed about the scope of
these programs in terms of (1) the individuals whose com-
- ER 326 -
439 F.Supp.2d 974
Purely do- Domestic-for-

mestic eign
communic- communic- Communic-
ation ation ation
content content records
General Govern- Govern- Govern-
public ment ment ment
DENIES DENIES NEITHER
al Qaeda or Govern- Govern- CON-
ment ment FIRMS
affiliate- DENIES CON- NOR
member/ FIRMS DENIES
agent
- ER 327 -
439 F.Supp.2d 974
Accordingly, the court concludes that the state secrets

As the chart relates, the government's public disclosures privilege will not prevent AT & T from asserting a certi-
regarding monitoring of “communication content” (i e, fication-based defense, as appropriate, regarding allega-
wiretapping or listening in on a communication) differ tions that it assisted the government in monitoring com-
significantly from its disclosures regarding munication content. The court envisions that AT & T
“communication records” (i e, collecting ancillary data could *997 confirm or deny the existence of a certifica-
pertaining to a communication, such as the telephone tion authorizing monitoring of communication content
numbers dialed by an individual). See supra I(C)(1). Ac- through a combination of responses to interrogatories and
cordingly, the court separately addresses for each alleged in camera review by the court. Under this approach, AT
program whether revealing the existence or scope of a & T could reveal information at the level of generality at
certification would disclose a state secret. which the government has publicly confirmed or denied
its monitoring of communication content. This approach
3
would also enable AT & T to disclose the non-privileged
[9] Beginning with the warrantless monitoring of information described here while withholding any incid-
“communication content,” the government has confirmed ental privileged information that a certification might con-
that it monitors “contents of communications where * * * tain.
one party to the communication is outside the United
4
States” and the government has “a reasonable basis to
conclude that one party to the communication is a mem- Turning to the alleged monitoring of communication re-
ber of al Qaeda, affiliated with al Qaeda, or a member of cords, the court notes that despite many public reports on
an organization affiliated with al Qaeda, or working in the matter, the government has neither confirmed nor
support of al Qaeda.” 12/19/05 Press Briefing at 1. The denied whether it monitors communication records and
government denies listening in without a warrant on any has never publicly disclosed whether the NSA program
purely domestic communications or communications in reported by USA Today on May 11, 2006, actually exists.
which neither party has a connection to al Qaeda or a re- Although BellSouth, Verizon and Qwest have denied par-
lated terrorist organization. In sum, regarding the govern- ticipating in this program, AT & T has neither confirmed
ment's monitoring of “communication content,” the gov- nor denied its involvement. Hence, unlike the program
ernment has disclosed the universe of possibilities in monitoring communication content, the general contours
terms of whose communications it monitors and where and even the existence of the alleged communication re-
those communicating parties are located. cords program remain unclear.
Based on these public disclosures, the court cannot con- Nonetheless, the court is hesitant to conclude that the ex-
clude that the existence of a certification regarding the istence or non-existence of the communication records
“communication content” program is a state secret. If the program necessarily constitutes a state secret. Confirming
government's public disclosures have been truthful, re- or denying the existence of this program would only af-
vealing whether AT & T has received a certification to as- fect a terrorist who was insensitive to the publicly dis-
sist in monitoring communication content should not re- closed “terrorist surveillance program” but cared about
veal any new information that would assist a terrorist and the alleged program here. This would seem unlikely to oc-
adversely affect national security. And if the government cur in practice given that the alleged communication re-
has not been truthful, the state secrets privilege should not cords program, which does not involve listening in on
serve as a shield for its false public statements. In short, communications, seems less intrusive than the “terrorist
the government has opened the door for judicial inquiry surveillance program,” which involves wiretapping. And
by publicly confirming and denying material information in any event, it seems odd that a terrorist would continue
about its monitoring of communication content. using AT & T given that BellSouth, Verizon and Qwest
have publicly denied participating in the alleged commu-
- ER 328 -
439 F.Supp.2d 974
nication records program and would appear to be safer ment contends is a constitutionally protected privilege, the
choices. Importantly, the public denials by these telecom- court declines to address these issues presently, particu-
munications companies undercut the government and AT larly because the issues might very well be obviated by
& T's contention that revealing AT & T's involvement or future public disclosures by the government and AT & T.
lack thereof in the program would disclose a state secret. If necessary, the court may revisit these arguments at a
later stage of this litigation.
Still, the court recognizes that it is not in a position to es-
timate a terrorist's risk preferences, which might depend H
on facts not before the court. For example, it may be that
a terrorist is unable to avoid AT & T by choosing another [10] The government also asserts two statutory privileges
provider or, for reasons outside his control, his commu- in its motion to dismiss that it contends apply “to any in-
nications might necessarily be routed through an AT & T telligence-related information, sources and methods im-
facility. Revealing that a communication records program plicated by [p]laintiffs' claims and the information
exists might encourage that terrorist to switch to less effi- covered by these privilege claims are at least co-extensive
cient but less detectable forms of communication. And re- with the assertion of the state secrets privilege by the
vealing that such a program does not exist might encour- DNI.” Gov MTD at 14. First, the government relies on 50
age a terrorist to use AT & T services when he would not U.S.C. § 402 note, which provides:
have done so otherwise. Accordingly, for present pur- [N]othing in this Act or any other law * * * shall be con-
poses, the court does not require AT & T to disclose what strued to require the disclosure of the organization or any
relationship, if any, it has with this alleged program. function of the National Security Agency, of any informa-
tion with respect to the activities thereof, or of the names,
The court stresses that it does not presently conclude that titles, salaries, or number of the persons employed by
the state secrets privilege will necessarily preclude AT & such agency.
T from revealing later in this litigation information about
the alleged communication records program. While this The government also relies on 50 U.S.C. § 403-1(i)(1),
case has been pending, the government and telecommu- which states, “The Director of National Intelligence shall
nications companies have made substantial public disclos- protect intelligence sources and methods from unauthor-
ures on the alleged NSA programs. It is conceivable that ized disclosure.”
these entities might disclose, either deliberately or acci-
Neither of these provisions by their terms requires the
dentally, other pertinent information about the communic-
court to dismiss this action and it would be premature for
ation records program as this litigation proceeds. The
the court to do so at this time. In opposing a subsequent
court recognizes*998 such disclosures might make this
summary judgment motion, plaintiffs could rely on many
program's existence or non-existence no longer a secret.
non-classified materials including present and future pub-
Accordingly, while the court presently declines to permit
lic disclosures of the government or AT & T on the al-
any discovery regarding the alleged communication re-
leged NSA programs, the AT & T documents and the sup-
cords program, if appropriate, plaintiffs can request that
porting Klein and Marcus declarations and information
the court revisit this issue in the future.
gathered during discovery. Hence, it is at least conceiv-
5 able that some of plaintiffs' claims, particularly with re-
spect to declaratory and injunctive relief, could survive
Finally, the court notes plaintiffs contend that Congress, summary judgment. After discovery begins, the court will
through various statutes, has limited the state secrets priv- determine step-by-step whether the privileges prevent
ilege in the context of electronic surveillance and has ab- plaintiffs from discovering particular evidence. But the
rogated the privilege regarding the existence of a govern- mere existence of these privileges does not justify dis-
ment certification. See Doc # 192 (Pl Opp Gov MTD) at missing this case now.
16-26, 45-48. Because these arguments potentially implic-
ate highly complicated separation of powers issues re- Additionally, neither of these provisions block AT & T
garding Congress' ability to abrogate what the govern- from producing any certification that it received to assist
- ER 329 -
439 F.Supp.2d 974
the government in monitoring communication content, at 20-22. According to AT & T, “Absent some concrete
see supra I(G)(3). Because information about this certific- allegation that the government monitored their commu-
ation would be revealed only at the same level of general- nications or records, all plaintiffs really have is a sugges-
ity as the government's public disclosures, permitting this tion that AT & T provided a means by which the govern-
discovery should not reveal any new information on the ment could have done so had it wished. This is anything
NSA's activities or its intelligence sources or methods, as- but injury-in-fact.” Id. at 20 (emphasis in original). AT &
suming that the government has been truthful. T compares this case to United Presbyterian Church v.
Reagan, 738 F.2d 1375 (D.C.Cir.1984) (written by then-
Accordingly, the court DENIES the government's motion Judge Scalia), in which the court found that plaintiffs' al-
to dismiss based on the statutory privileges and DENIES legations of unlawful surveillance were “too generalized
the *999 privileges with respect to any certification that and nonspecific to support a complaint.” Id. at 1380.
AT & T might have received authorizing it to monitor
communication content. As a preliminary matter, AT & T incorrectly focuses on
whether plaintiffs have pled that the government
II “monitored [plaintiffs'] communications or records” or
“targeted [plaintiffs] or their communications.” Instead,
AT & T moves to dismiss plaintiffs' complaint on mul-
the proper focus is on AT & T's actions. Plaintiffs' stat-
tiple grounds, contending that (1) plaintiffs lack standing,
utory claims stem from injuries caused solely by AT & T
(2) the amended complaint fails to plead affirmatively the
through its alleged interception, disclosure, use, divul-
absence of immunity from suit and (3) AT & T is entitled
gence and/or publication of plaintiffs' communications or
to statutory, common law and qualified immunity. Be-
communication records. FAC, ¶¶ 93-95, 102-05, 113-14,
cause standing is a threshold jurisdictional question, the
121, 128, 135-41. Hence, plaintiffs need not allege any
court addresses that issue first. See Steel Company v. Cit-
facts regarding the government's conduct to state these
izens for a Better Environment, 523 U.S. 83, 94, 102, 118
claims.
S.Ct. 1003, 140 L.Ed.2d 210 (1998).
[14] More importantly, for purposes of the present motion
A
to dismiss, plaintiffs have stated sufficient facts to allege
[11][12] “[T]he core component of standing is an essen- injury-in-fact for all their claims. “At the pleading stage,
tial and unchanging part of the case-or-controversy re- general factual allegations of injury resulting from the de-
quirement of Article III.” Lujan v. Defenders of Wildlife, fendant's conduct may suffice, for on a motion to dismiss
504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 we ‘presume that general allegations embrace those spe-
(1992). To establish standing under Article III, a plaintiff cific facts that are necessary to support the claim.’ ” Lu-
must satisfy three elements: (1) “the plaintiff must have jan, 504 U.S. at 561, 112 S.Ct. 2130 (quoting *1000Lujan
suffered an injury in fact-an invasion of a legally protec- v. National Wildlife Federation, 497 U.S. 871, 889, 110
ted interest which is (a) concrete and particularized and S.Ct. 3177, 111 L.Ed.2d 695 (1990)). Throughout the
(b) actual or imminent, not conjectural or hypothetical,” complaint, plaintiffs generally describe the injuries they
(2) “there must be a causal connection between the injury have allegedly suffered because of AT & T's illegal con-
and the conduct complained of” and (3) “it must be likely, duct and its collaboration with the government. See, e g,
as opposed to merely speculative, that the injury will be FAC, ¶ 61 (“On information and belief, AT & T Corp has
redressed by a favorable decision.” Id. at 560-61, 112 provided the government with direct access to the con-
S.Ct. 2130 (internal quotation marks, citations and foot- tents of the Hawkeye, Aurora and/or other databases that
note omitted). A party invoking federal jurisdiction has it manages using Daytona, including all information, re-
the burden of establishing its standing to sue. Id. at 561, cords, [dialing, routing, addressing and/or signaling in-
112 S.Ct. 2130. formation] and [customer proprietary network informa-
tion] pertaining to [p]laintiffs and class members, by
[13] In the present case, AT & T contends plaintiffs have providing the government with copies of the information
not sufficiently alleged injury-in-fact and their complaint in the databases and/or by giving the government access
relies on “wholly conclusory” allegations. AT & T MTD to Daytona's querying capabilities and/or some other tech-
- ER 330 -
439 F.Supp.2d 974
nology enabling the government agents to search the data- v. Akins, 524 U.S. 11, 118 S.Ct. 1777, 141 L.Ed.2d 10
bases' contents.”); id., ¶ 6 (“On information and belief, (1998), the Supreme Court explained:
AT & T Corp has opened its key telecommunications fa- Whether styled as a constitutional or prudential limit on
cilities and databases to direct access by the NSA and/or standing, the Court has sometimes determined that where
other government agencies, intercepting and disclosing to large numbers of Americans suffer alike, the political pro-
the government the contents of its customers' communica- cess, rather than the judicial process, may provide the
tions as well as detailed communications records about more appropriate remedy for a widely shared grievance.
millions of its customers, including [p]laintiffs and class *1001 [This] kind of judicial language * * * however, in-
members.”). variably appears in cases where the harm at issue is not
only widely shared, but is also of an abstract and indefin-
By contrast, plaintiffs in United Presbyterian Church al- ite nature.
leged they “ha[d] been informed on numerous occasions”
that mail that they had sent never reached its destination, Id. at 23, 118 S.Ct. 1777. The Court continued:[W]here a
“ha[d] reason to believe that, for a long time, [their] of- harm is concrete, though widely shared, the Court has
ficers, employees, and persons associated with [them had] found “injury in fact.” Thus the fact that a political forum
been subjected to government surveillance, infiltration may be more readily available where an injury is widely
and disruption” and “discern[ed] a long-term pattern of shared (while counseling against, say, interpreting a stat-
surveillance of [their] members, disruption of their speak- ute as conferring standing) does not, by itself, automatic-
ing engagements in this country, and attempts at character ally disqualify an interest for Article III purposes. Such an
assassination.” See 738 F.2d at 1380 n. 2. Because these interest, where sufficiently concrete, may count as an
allegations were more attenuated and less concrete than “injury in fact.”
the specific injuries alleged here, United Presbyterian
Church does not support dismissing this action. Id. at 24, 118 S.Ct. 1777.
AT & T also contends “[p]laintiffs lack standing to assert Here, the alleged injury is concrete even though it is
their statutory claims (Counts II-VII) because the FAC al- widely shared. Despite AT & T's alleged creation of a
leges no facts suggesting that their statutory rights have dragnet to intercept all or substantially all of its custom-
been violated” and “the FAC alleges nothing to suggest ers' communications, this dragnet necessarily inflicts a
that the named plaintiffs were themselves subject to sur- concrete injury that affects each customer in a distinct
veillance.” AT & T MTD at 24-25 (emphasis in original). way, depending on the content of that customer's commu-
But AT & T ignores that the gravamen of plaintiffs' com- nications and the time that customer spends using AT & T
plaint is that AT & T has created a dragnet that collects services. Indeed, the present situation resembles a scen-
the content and records of its customers' communications. ario in which “large numbers of individuals suffer the
See, e g, FAC, ¶¶ 42-64. The court cannot see how any same common-law injury (say, a widespread mass tort).”
one plaintiff will have failed to demonstrate injury-in-fact Id.
if that plaintiff effectively demonstrates that all class
AT & T also contends that the state secrets privilege bars
members have so suffered. This case is plainly distin-
plaintiffs from establishing standing. Doc # 244 (AT & T
guishable from Halkin II, for in that case, showing that
Reply) at 16-18. See also Gov MTD 16-20. But as de-
plaintiffs were on a watchlist was not tantamount to
scribed above, the state secrets privilege will not prevent
showing that any particular plaintiff suffered a surveil-
plaintiffs from receiving at least some evidence tending to
lance-related injury-in-fact. See Halkin II, 690 F.2d at
establish the factual predicate for the injury-in-fact under-
999-1001. As long as the named plaintiffs were, as they
lying their claims directed at AT & T's alleged involve-
allege, AT & T customers during the relevant time period
ment in the monitoring of communication content. See
(FAC, ¶¶ 13-16), the alleged dragnet would have impar-
supra I(G)(3). And the court recognizes that additional
ted a concrete injury on each of them.
facts might very well be revealed during, but not as a dir-
This conclusion is not altered simply because the alleged ect consequence of, this litigation that obviate many of the
injury is widely shared among AT & T customers. In FEC secrecy concerns currently at issue regarding the alleged
- ER 331 -
439 F.Supp.2d 974
communication records program. Hence, it is unclear against any provider of wire or electronic communication
whether the privilege would necessarily block AT & T service, its officers, employees, agents, or other specified
from revealing information about its participation, if any, persons for providing information, facilities, or assistance
in that alleged program. See supra I(G)(4). The court fur- in accordance with the terms of a court order, warrant,
ther notes that the AT & T documents and the accompa- subpoena, statutory authorization, or certification under
nying Klein and Marcus declarations provide at least this chapter.
some factual basis for plaintiffs' standing. Accordingly,
the court does not conclude at this juncture that plaintiffs' The court recognizes that the language emphasized above
claims would necessarily lack the factual support required suggests that to state a claim under these statutes, a
to withstand a future jurisdictional challenge based on plaintiff must affirmatively allege that a telecommunica-
lack of standing. tions provider did not receive a government certification.
And out of the many statutory exceptions in section 2511,
Because plaintiffs have sufficiently alleged that they only section 2511(2)(a)(ii) appears in section 2520(a),
suffered an actual, concrete injury traceable to AT & T thereby suggesting that a lack of certification is an ele-
and redressable by this court, the court DENIES AT & T's ment of a Title III claim whereas the other exceptions are
motion to dismiss for lack of standing. simply affirmative defenses. As AT & T notes, this inter-
pretation is at least somewhat supported by the Senate re-
B port accompanying 18 U.S.C. § 2520, which states in rel-
evant part:A civil action will not lie [under 18 U.S.C. §
[15] AT & T also contends that telecommunications pro-
2520] where the requirements of sections 2511(2)(a)(ii) of
viders are immune from suit if they receive a government
title 18 are met. With regard to that exception, the Com-
certification authorizing them to conduct electronic sur-
mittee intends that the following procedural standards will
veillance. AT & T MTD at 5. AT & T argues that
apply:
plaintiffs have the burden to plead affirmatively that AT
(1) The complaint must allege that a wire or electronic
& T lacks such a certification and that plaintiffs have
communications service provider (or one of its employ-
failed to do so here, thereby making dismissal appropri-
ees) (a) disclosed the existence of a wiretap; (b) acted
ate. Id. at 10-13, 118 S.Ct. 1777.
without a facially valid court order or certification; (c)
As discussed above, the procedural requirements for a acted beyond the scope of a court order or certification or
certification are addressed in 18 U.S.C. § (d) acted on bad faith. Acting in bad faith would include
2511(2)(a)(ii)(B). See supra I(G)(1). Under section failing to read the order or collusion. If the complaint fails
2511(2)(a)(ii), “No cause of action shall lie in any court to make any of these allegations, the defendant can move
against any provider of wire or electronic communication to dismiss the complaint for failure to state a claim upon
service * * * for providing information, facilities, or as- which relief can be granted.
sistance*1002 in accordance with the terms of a * * * cer-
ECPA, S. Rep. No. 99-541, 99th Cong., 2d Sess. 26
tification under this chapter.” This provision is referenced
(1986) (reprinted in 1986 U.S.C.C.A.N. 3555, 3580)
in 18 U.S.C. § 2520(a) (emphasis added), which creates a
(emphasis added).
private right of action under Title III:
Except as provided in section 2511(2)(a)(ii), any person Nonetheless, the statutory text does not explicitly provide
whose wire, oral, or electronic communication is intercep- for a heightened pleading requirement, which is in es-
ted, disclosed, or intentionally used in violation of this sence what AT & T seeks to impose here. And the court is
chapter [18 U.S.C.S. §§ 2510 et seq] may in a civil action reluctant to infer a heightened pleading requirement into
recover from the person or entity, other than the United the statute given that in other contexts, Congress has been
States, which engaged in that violation such relief as may explicit when it intended to create such a requirement.
be appropriate. See, e g, Private Securities Litigation Reform Act of
1995, § 101, 15 U.S.C. § 78u-4(b)(1), (2) (prescribing
A similar provision exists at 18 U.S.C. § 2703(e)
heightened pleading standards for securities class ac-
(emphasis added):No cause of action shall lie in any court
tions).
- ER 332 -
439 F.Supp.2d 974
In any event, the court need not decide whether plaintiffs leged actions, it does not inexorably follow that AT & T
must plead affirmatively the absence of a certification be- received an official certification blessing its actions. At
cause the present complaint, liberally construed, alleges the hearing, plaintiffs' counsel suggested that they had
that AT & T acted outside the scope of any government “information and belief based on the news reports that
certification it might have received. In particular, para- [the alleged activity] was done based on oral requests” not
graphs 81 and 82, which are incorporated in all of a written certification. Id. at 24:21-22. Additionally, the
plaintiffs' claims, state: phrase “judicial or other lawful authorization” in para-
81. On information and belief, the above-described acts graph 81 parallels how “a court order” and “a certifica-
[by defendants] of interception, disclosure, divulgence tion” appear in 18 U.S.C. §§ 2511(2)(a)(ii)(A) and (B),
*1003 and/or use of Plaintiffs' and class members' com- respectively; this suggests that “lawful authorization”
munications, contents of communications, and records refers to a certification. Interpreted in this manner,
pertaining to their communications occurred without judi- plaintiffs are making a factual allegation that AT & T did
cial or other lawful authorization, probable cause, and/or not receive a certification.
individualized suspicion.
82. On information and belief, at all relevant times, the In sum, even if plaintiffs were required to plead affirmat-
government instigated, directed and/or tacitly approved ively that AT & T did not receive a certification authoriz-
all of the above-described acts of AT & T Corp. ing its alleged actions, plaintiffs' complaint can fairly be
interpreted as alleging just that. Whether and to what ex-
FAC, ¶¶ 81-82 (emphasis added). tent the government authorized AT & T's alleged conduct
remain issues for further litigation. For now, however, the
Plaintiffs contend that the phrase “occurred without judi- court DENIES AT & T's motion to dismiss on this
cial or other lawful authorization” means that AT & T ac- ground.
ted without a warrant or a certification. Doc # 176 (Pl
Opp AT & T MTD) at 13-15. At oral argument, AT & T C
took issue with this characterization of “lawful authoriza-
tion”: [16] AT & T also contends that the complaint should be
The emphasis there is on the word ‘lawful[.’] When you dismissed because it failed to plead the absence of an ab-
read that paragraph in context, it's clear that what solute common law immunity to which AT & T claims to
[plaintiffs are] saying is that any authorization [AT & T] be entitled. AT & T MTD at 13-15. AT & T asserts that
receive[s] is, in [plaintiffs'] view, unlawful. And you can this immunity “grew out of a recognition that telecommu-
see that because of the other paragraphs in the complaint. nications carriers should not be subject to civil liability
The very next one, [p]aragraph 82, is the paragraph where for cooperating with government officials conducting sur-
[plaintiffs] allege that the United States government ap- veillance activities. That is true whether or not the surveil-
proved and instigated all of our actions. It wouldn't be lance was lawful, so long as the government officials re-
reasonable to construe Paragraph 81 as saying that [AT & questing cooperation assured the carrier that it was.” Id. at
T was] not authorized by the government to do what [AT 13. AT & T also argues that the statutory*1004 immunit-
& T] allegedly did when the very next paragraph states ies do not evince a “congressional purpose to displace,
the exact opposite. rather than supplement, the common law.” Id.
6/23/06 Transcript at 10:21-11:6. Indeed, the court does AT & T overstates the case law when intimating that the
not question that it would be extraordinary for a large, immunity is long established and unequivocal. AT & T
sophisticated entity like AT & T to assist the government relies primarily on two cases: Halperin v. Kissinger, 424
in a warrantless surveillance program without receiving a F.Supp. 838 (D.D.C.1976), revd on other grounds, 606
certification to insulate its actions. F.2d 1192 (D.C.Cir.1979) and Smith v. Nixon, 606 F.2d
1183 (D.C.Cir.1979). In Halperin, plaintiffs alleged that
Nonetheless, paragraph 81 could be reasonably inter- the Chesapeake and Potomac Telephone Company (C &
preted as alleging just that. Even if “the government in- P) assisted federal officials in illegally wiretapping
stigated, directed and/or tacitly approved” AT & T's al- plaintiffs' home telephone, thereby violating plaintiffs'
- ER 333 -
439 F.Supp.2d 974
constitutional and Title III statutory rights. 424 F.Supp. at the phrase “C & P's limited technical role in the surveil-
840. In granting summary judgment for C & P, the district lance as well as its reasonable expectation of legality can-
court noted: not give rise to liability for any statutory or constitutional
Chesapeake and Potomac Telephone Company, argues violation” could plausibly be interpreted as describing a
persuasively that it played no part in selecting any wiretap good faith defense. And at least one court appears to have
suspects or in determining the length of time the surveil- interpreted Smith in that manner. See Manufacturas Intl.,
lance should remain. It overheard none of plaintiffs' con- Ltda v. Manufacturers Hanover Trust Co., 792 F.Supp.
versations and was not informed of the nature or outcome 180, 192-93 (E.D.N.Y.1992) (referring to Smith while dis-
of the investigation. As in the past, C & P acted in reli- cussing good faith defenses).
ance upon a request from the highest Executive officials
and with assurances that the wiretap involved national se- Moreover, it is not clear at this point in the litigation
curity matters. Under these circumstances, C & P's limited whether AT & T played a “mere technical role” in the al-
technical role in the surveillance as well as its reasonable leged NSA surveillance programs. The complaint alleges
expectation of legality cannot give rise to liability for any that “at all relevant times, the government instigated, dir-
statutory or constitutional violation. ected and/or tacitly *1005 approved all of the above-
described acts of AT & T Corp.” FAC, ¶ 82. But given
Id. at 846. the massive scale of the programs alleged here and AT &
T's longstanding history of assisting the government in
Smith v. Nixon involved an allegedly illegal wiretap that classified matters, one could reasonably infer that AT &
was part of the same surveillance program implicated in T's assistance here is necessarily more comprehensive
Halperin. In addressing C & P's potential liability, the than C & P's assistance in Halperin and Smith. Indeed,
Smith court noted: there is a world of difference between a single wiretap
The District Court dismissed the action against C & P, and an alleged dragnet that sweeps in the communication
which installed the wiretap, on the ground cited in the content and records of all or substantially all AT & T cus-
District Court's opinion in Halperin: ‘C & P's limited tomers.
technical role in the surveillance as well as its reasonable
expectation of legality cannot give rise to liability for any AT & T also relies on two Johnson-era cases: Fowler v.
statutory or constitutional violation. * * *.’ We think this Southern Bell Telephone & Telegraph Co., 343 F.2d 150
was the proper disposition. The telephone company did (5th Cir.1965), and Craska v. New York Telephone Co.,
not initiate the surveillance, and it was assured by the 239 F.Supp. 932 (N.D.N.Y.1965). Fowler involved a
highest Executive officials in this nation that the action Georgia state claim for invasion of right of privacy
was legal. against a telephone company for assisting federal officers
to intercept plaintiff's telephone conversations. Fowler
606 F.2d at 1191 (citation and footnote omitted) noted that a “defense of privilege” would extend to the
(omission in original). telephone company only if the court determined that the
federal officers acted within the scope of their duties:
The court first observes that Halperin, which formed the
If it is established that [the federal officers] acted in the
basis for the Smith decision, never indicated that C & P
performance and scope of their official powers and within
was “immune” from suit; rather, the court granted sum-
the outer perimeter of their duties as federal officers, then
mary judgment after it determined that C & P played only
the defense of privilege would be established as to them.
a “limited technical role” in the surveillance. And al-
In this event the privilege may be extended to exonerate
though C & P was dismissed in Smith on a motion to dis-
the Telephone Company also if it appears, in line with the
miss, Smith never stated that C & P was immune from
allegations of the complaint, that the Telephone Company
suit; the only discussion of “immunity” there related to
acted for and at the request of the federal officers and
other defendants who claimed entitlement to qualified and
within the bounds of activity which would be privileged
absolute immunity.
as to the federal officers.
At best, the language in Halperin and Smith is equivocal:
343 F.2d at 156-57 (emphasis added). Accordingly, Fowl-
- ER 334 -
439 F.Supp.2d 974
er does not absolve AT & T of any liability unless and un- reason to presume that a common law immunity is avail-
til the court determines that the government acted legally able simply because Congress has not expressed a con-
in creating the NSA surveillance programs alleged in the trary intent. Cf. Owen v. City of Independence, 445 U.S.
complaint. 622, 638, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980)
(“[N]otwithstanding § 1983's expansive language and the
Craska also does not help AT & T. In that case, plaintiff absence of any express incorporation of common-law im-
sued a telephone company for violating her statutory munities, we have, on several occasions, found that a tra-
rights by turning over telephone records to the govern- dition of immunity was so firmly rooted in the common
ment under compulsion of state law. Craska, 239 F.Supp. law and was supported such strong policy reasons that
at 933-34, 936. The court declined to ascribe any liability ‘Congress would have specifically so provided had it
to the telephone company because its assistance was re- wished to abolish the doctrine.’ ” (quoting Pierson v. Ray,
quired under state law: “[T]he conduct of the telephone 386 U.S. 547, 555, 87 S.Ct. 1213, 18 L.Ed.2d 288
company, acting under the compulsion of State law and (1967))).
process, cannot sensibly be said to have joined in a know-
ing venture of interception and divulgence of a telephone Accordingly, the court DENIES AT & T's motion to dis-
conversation, which it sought by affirmative action to miss on the basis of a purported common law immunity.
make succeed.” Id. at 936. By contrast, it is not evident
whether AT & T was required to help the government D
here; indeed, AT & T appears to have confirmed that it
[17][18] AT & T also argues that it is entitled to qualified
did not have any legal obligation to assist the government
immunity. AT & T MTD at 16. Qualified immunity
implement any surveillance program. 6/23/06 Transcript
shields state actors from liability for civil damages
at 17:25-18:4 (“The Court: Well, AT & T could refuse,
“insofar as their conduct does not violate clearly estab-
could it not, to provide access to its facilities? [AT & T]:
lished statutory or constitutional rights of which a reason-
Yes, it could. Under [18 U.S.C. § ] 2511, your Honor, AT
able person would have known.” Harlow v. Fitzgerald,
& T would have the discretion to refuse, and certainly if it
457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396
believed anything illegal was occurring, it would do so.”).
(1982). “Qualified immunity strikes a balance between
Moreover, even if a common law immunity existed dec- compensating those who have been injured by official
ades ago, applying it presently would undermine the care- conduct and protecting government's ability to perform its
fully crafted scheme of claims and defenses that Congress traditional functions.” Wyatt v. Cole, 504 U.S. 158, 167,
established in subsequently enacted statutes. For example, 112 S.Ct. 1827, 118 L.Ed.2d 504 (1992). “[T]he qualified
all of the cases cited by AT & T as applying the common immunity recognized in Harlow acts to safeguard govern-
law “immunity” were filed before the certification provi- ment, and thereby to protect the public at large, not to be-
sion of FISA went into effect. See § 301 of FISA. That nefit its agents.” Wyatt v. Cole, 504 U.S. 158, 168, 112
provision protects a telecommunications provider from S.Ct. 1827, 118 L.Ed.2d 504 (1992). Compare AT & T
suit if it obtains from the Attorney General or other au- MTD at 17 (“It would make little sense to protect the
thorized government official a written certification “that principal but not its agent.”). The Supreme Court does not
no warrant or court *1006 order is required by law, that “draw a distinction for purposes of immunity law between
all statutory requirements have been met, and that the spe- suits brought against state officials under [42 U.S.C.] §
cified assistance is required.” 18 U.S.C. § 1983 and suits brought directly under the Constitution
2511(2)(a)(ii)(B). Because the common law “immunity” [via Bivens v. Six Unknown Named Agents, 403 U.S. 388,
appears to overlap considerably with the protections af- 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) ] against federal of-
forded under the certification provision, the court would ficials.” Butz v. Economou, 438 U.S. 478, 504, 98 S.Ct.
in essence be nullifying the procedural requirements of 2894, 57 L.Ed.2d 895 (1978).
that statutory provision by applying the common law
[19] At the pleadings stage, qualified immunity analysis
“immunity” here. And given the shallow doctrinal roots
entails three steps. First, the court must determine wheth-
of immunity for communications carriers at the time Con-
er, taken in the light most favorable to the plaintiff, the
gress enacted the statutes in play here, there is simply no
- ER 335 -
439 F.Supp.2d 974
facts alleged show a violation of the plaintiffs' statutory or if ever, don the cloak of qualified immunity. See also Ace
constitutional rights. Saucier v. Katz, 533 U.S. 194, 201, Beverage Co. v. Lockheed Information Mgmt. Servs., 144
121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). If a violation has F.3d 1218, 1219 n. 3 (9th Cir.1998) (noting that “[i]n
been alleged, the court next determines whether the right cases decided before [the Supreme Court's decision in
infringed was clearly established at the time of the alleged Richardson v. McKnight, 521 U.S. 399, 117 S.Ct. 2100,
violation. Finally, the court assesses whether it would be 138 L.Ed.2d 540 (1997) ],” the Ninth Circuit had
clear to a reasonable person in the defendant's position “adopted a general rule that private parties are not entitled
that its conduct was unlawful in the situation it confron- to qualified immunity”).
ted. Id. at 202, 205, 121 S.Ct. 2151. See also Frederick v.
Morse, 439 F.3d 1114, 1123 (9th Cir.2006) Applying Wyatt to a case involving section 1983 claims
(characterizing this final inquiry as a discrete third step in against privately employed prison guards, the Supreme
the analysis). “This is not to say that an official action is Court in Richardson v. McKnight, 521 U.S. 399, 117 S.Ct.
protected by *1007 qualified immunity unless the very ac- 2100, 138 L.Ed.2d 540 (1997), stated that courts should
tion in question has previously been held unlawful, but it “look both to history and to the purposes that underlie
is to say that in the light of pre-existing law the unlawful- government employee immunity in order to” determine
ness must be apparent.” Hope v. Pelzer, 536 U.S. 730, whether that immunity extends to private parties. Id. at
739, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002) (citation 404, 117 S.Ct. 2100. Although this issue has been ad-
omitted). dressed by the Ninth Circuit in several cases, the court has
yet to extend qualified immunity to a private party under
1 McKnight. See, e.g., Ace Beverage, 144 F.3d at 1220;
Jensen, 222 F.3d at 576-80.
[20] When a private party seeks to invoke qualified im-
munity, the court must first decide whether qualified im- 2
munity is “categorically available,” which “requires an
evaluation of the appropriateness of qualified immunity [21] The court now determines whether the history of the
given its historical availability and the policy considera- alleged immunity and purposes of the qualified immunity
tions underpinning the doctrine.” Jensen v. Lane County, doctrine support extending qualified immunity to AT &
222 F.3d 570, 576 (9th Cir.2000). This inquiry is distinct T.
from the question whether a nominally private party is a
As described in section II(C), supra, no firmly rooted
state actor for purposes of a section 1983 or Bivens claim.
common law immunity exists for telecommunications
In Wyatt v. Cole, 504 U.S. 158, 112 S.Ct. 1827, 118 providers assisting the government. And presently apply-
L.Ed.2d 504 (1992), the Supreme Court laid the founda- ing whatever immunity might have previously existed
tion for determining whether a private actor is entitled to would undermine the various statutory schemes created
qualified immunity. The plaintiff there sued under section by Congress, including the certification defense under 18
1983 to recover property from a private party who had U.S.C. § 2511(2)(a)(ii)(B).
earlier obtained a writ of replevin against the plaintiff. See
[22] Turning to the purposes of qualified immunity, they
Lugar v. Edmondson Oil Co., 457 U.S. 922, 102 S.Ct.
include: “(1) protecting the public from unwarranted
2744, 73 L.Ed.2d 482 (1982) (holding that a private party
timidity on the part of public officials and encouraging
acted under color of law under similar circumstances).
the vigorous exercise of official authority;*1008 (2) pre-
After determining that the common law did not recognize
venting lawsuits from distracting officials from their gov-
an immunity from analogous tort suits, the court
ernmental duties; and (3) ensuring that talented candidates
“conclude[d] that the rationales mandating qualified im-
are not deterred by the threat of damages suits from enter-
munity for public officials are not applicable to private
ing public service.” Jensen, 222 F.3d at 577 (citations,
parties.” Wyatt, 504 U.S. at 167, 112 S.Ct. 1827. Al-
quotations and alterations omitted). See also Harlow, 457
though Wyatt purported to be limited to its facts, id. at
U.S. at 816, 102 S.Ct. 2727 (recognizing “the general
168, 112 S.Ct. 1827, the broad brush with which the
costs of subjecting officials to the risks of trial-distraction
Court painted suggested that private parties could rarely,
- ER 336 -
439 F.Supp.2d 974
of officials from their governmental duties, inhibition of Cir.1999) (The court “fail[ed] to see the logic of provid-
discretionary action, and deterrence of able people from ing a defense of qualified immunity to protect public offi-
public service”). AT & T contends that national security cials from personal liability when they violate constitu-
surveillance is “a traditional governmental function of the tional rights that are not clearly established and deny them
highest importance” requiring access to the “critical tele- qualified immunity when they violate statutory rights that
communications infrastructure” that companies such as similarly are not clearly established.”); accord Tapley,
AT & T would be reluctant to furnish if they were ex- 211 F.3d at 1216. But see Mitchell v. Forsyth, 472 U.S.
posed to civil liability. AT & T MTD at 17. 511, 557, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985)
(Brennan concurring in part and dissenting in part) (“The
AT & T's concerns, while relevant, do not warrant extend- Court's argument seems to be that the trial court should
ing qualified immunity here because the purposes of that have decided the legality of the wiretap under Title III be-
immunity are already well served by the certification pro- fore going on to the qualified immunity question, since
vision of 18 U.S.C. § 2511(2)(a)(ii). As noted above, al- that question arises only when considering the legality of
though it is unclear whether a valid certification would the wiretap under the Constitution.”).
bar plaintiffs' constitutional claim, section 2511(2)(a)(ii)
clearly states that a valid certification precludes the stat- *1009 With all due respect to the Sixth and Eleventh Cir-
utory claims asserted here. See supra I(G)(1). Hence, but cuits, those courts appear to have overlooked the relation-
for the government's assertion of the state secrets priv- ship between the doctrine of qualified immunity and the
ilege, the certification provision would seem to facilitate schemes of state and federal official liability that are es-
prompt adjudication of damages claims such as those at sentially creatures of the Supreme Court. Qualified im-
bar. And because section 2511(2)(a)(ii)'s protection does munity is a doctrinal outgrowth of expanded state actor li-
not appear to depend on a fact-intensive showing of good ability under 42 U.S.C. § 1983 and Bivens. See Monroe v.
faith, the provision could be successfully invoked without Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961)
the burdens of full-blown litigation. Compare Tapley v. (breathing new life into section 1983); Scheuer v. Rhodes,
Collins, 211 F.3d 1210, 1215 (11th Cir.2000) (discussing 416 U.S. 232, 247, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974)
the differences between qualified immunity and good (deploying the phrase “qualified immunity” for the first
faith defense under Title III, 18 U.S.C. § 2520(d)). time in the Supreme Court's jurisprudence); Butz v. Eco-
nomou, 438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895
More fundamentally, “[w]hen Congress itself provides for (1978) (extending qualified immunity to federal officers
a defense to its own cause of action, it is hardly open to sued under Bivens for federal constitutional violations);
the federal court to graft common law defenses on top of Maine v. Thiboutot, 448 U.S. 1, 100 S.Ct. 2502, 65
those Congress creates.” Berry v. Funk, 146 F.3d 1003, L.Ed.2d 555 (1980) (holding that section 1983 could be
1013 (D.C.Cir.1998) (holding that qualified immunity used to vindicate non-constitutional statutory rights); Har-
could not be asserted against a claim under Title III). As low, 457 U.S. at 818, 102 S.Ct. 2727 (making the unpre-
plaintiffs suggest, the Ninth Circuit appears to have con- cedented reference to “clearly established statutory ”
cluded that the only defense under Title III is that rights just two years after Thiboutot (emphasis added)).
provided for by statute-although, in fairness, the court did These causes of action “were devised by the Supreme
not explicitly address the availability of qualified im- Court without any legislative or constitutional (in the
munity. See Jacobson v. Rose, 592 F.2d 515, 522-24 (9th sense of positive law) guidance.” Crawford-El v. Britton,
Cir.1978) (joined by then-Judge Kennedy). But cf. Doe v. 93 F.3d 813, 832 (D.C.Cir.1996) (en banc) (Silberman
United States, 941 F.2d 780, 797-99 (9th Cir.1991) concurring), vacated on other grounds, 523 U.S. 574, 118
(affirming grant of qualified immunity from liability un- S.Ct. 1584, 140 L.Ed.2d 759 (1998). “It is understandable
der section 504 of the Rehabilitation Act without analyz- then, that the Court also developed the doctrine of quali-
ing whether qualified immunity could be asserted in the fied immunity to reduce the burden on public officials.”
first place). Nonetheless, at least two appellate courts Berry, 146 F.3d at 1013.
have concluded that statutory defenses available under
Title III do not preclude a defendant from asserting quali- In contrast, the statutes in this case set forth comprehens-
fied immunity. Blake v. Wright, 179 F.3d 1003, 1013 (6th ive, free-standing liability schemes, complete with stat-
- ER 337 -
439 F.Supp.2d 974
utory defenses, many of which specifically contemplate 297, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972) (Keith ), the
liability on the part of telecommunications providers such Supreme Court held that the Fourth Amendment does not
as AT & T. For example, the Stored Communications Act permit warrantless wiretaps to track domestic threats to
prohibits providers of “electronic communication service” national security, id. at 321, 92 S.Ct. 2125, reaffirmed the
and “remote computing service” from divulging contents “necessity of obtaining a warrant in the surveillance of
of stored communications. See 18 U.S.C. § 2702(a)(1), crimes unrelated to the national security interest,” id. at
(a)(2). Moreover, the Stored Communications Act spe- 308, 92 S.Ct. 2125, and did not pass judgment “on the
cifically contemplates carrier liability for unauthorized scope of the President's surveillance power with respect to
disclosure of subscriber records “to any governmental en- the activities of foreign powers, within or without this
tity.” See id.§ 2702(a)(3). It can hardly be said that Con- country,” id. Because the alleged dragnet here encom-
gress did not contemplate that carriers might be liable for passes the communications of “all or substantially all of
cooperating with the government when such cooperation the communications transmitted through [AT & T's] key
did not conform to the requirements of the act. domestic telecommunications facilities,” it cannot reason-
ably be said that the program as alleged is limited to
Similarly, Congress specifically contemplated that com- tracking foreign powers. Accordingly, AT & T's alleged
munications carriers could be liable for violations of Title actions here violate the constitutional rights clearly estab-
III. See Jacobson, 592 F.2d at 522. And in providing for a lished in Keith. Moreover, because “the very action in
“good faith” defense in Title III, Congress specifically question has previously been held unlawful,” AT & T
sought “ ‘to protect telephone companies or other persons cannot seriously contend that a reasonable entity in its po-
who cooperate * * * with law enforcement officials.’ ” Id. sition could have believed that the alleged domestic drag-
at 522-23 (quoting Senate debates). See also id. at 523 n. net was legal.
13. Cf. 18 U.S.C. § 2511(2)(a)(ii) (providing a statutory
defense to “providers of wire or electronic communica- 4
tion service”).
Accordingly, the court DENIES AT & T's instant motion
In sum, neither the history of judicially created immunit- to dismiss on the basis of qualified immunity. The court
ies for telecommunications carriers nor the purposes of does not preclude AT & T from raising the qualified im-
qualified immunity justify allowing AT & T to claim the munity defense later in these proceedings, if further dis-
benefit of the doctrine in this case. covery indicates that such a defense is merited.
3 III
[23] The court also notes that based on the facts as alleged [24] As this case proceeds to discovery, the court flags a
in plaintiffs' complaint, AT & T is not entitled to qualified few procedural matters on which it seeks the parties' guid-
immunity with respect to plaintiffs' constitutional claim, ance. First, while the court has a duty to the extent pos-
at least not at this stage of the proceedings. Plaintiffs' con- sible to disentangle sensitive information from nonsensit-
stitutional claim alleges that AT & T provides the govern- ive information, see Ellsberg, 709 F.2d at 57, the court
ment with direct and indiscriminate access to the domestic also must take special care to honor the extraordinary se-
communications of AT & T customers. See, e g, FAC, ¶ curity concerns raised by the government here. To help
42 (“On information and belief, AT & T Corp *1010 has perform these duties, the court proposes appointing an ex-
provided and continues to provide the government with pert pursuant to FRE 706 to assist the court in determin-
direct access to all or a substantial number of the commu- ing whether disclosing particular evidence would create a
nications transmitted through its key domestic telecom- “reasonable danger” of harming national security. See
munications facilities, including direct access to streams FRE 706(a) (“The court may on its own motion or on the
of domestic, international and foreign telephone and Inter- motion of any party enter an order to show cause why ex-
net communications.”); id., ¶ 78 (incorporating paragraph pert witnesses should not be appointed, and may request
42 by reference into plaintiffs' constitutional claim). In the parties to submit nominations. The court may appoint
United States v. United States District Court, 407 U.S. any expert witnesses agreed upon by the parties, and may
- ER 338 -
439 F.Supp.2d 974
appoint expert witnesses of its own selection.”). Although have to be stayed. 28 U.S.C. § 1292(b) (“[A]pplication for
other courts do not appear to have used FRE 706 experts an appeal hereunder shall not stay proceedings in the dis-
in the manner proposed here, this procedural innovation trict court unless the district judge or the Court of Appeals
seems appropriate given the complex and weighty issues or a judge thereof shall so order.”). At the very least, it
the court will confront in navigating any future privilege would seem prudent for the court to select the expert pur-
assertions. See Ellsberg, 709 F.2d at 64 (encouraging suant to FRE 706 prior to the Ninth Circuit's review of
“procedural innovation” in addressing state secrets is- this matter.
sues); Halpern, 258 F.2d at 44 (“A trial in camera in
which the privilege relating to state secrets may not be Accordingly, the court ORDERS the parties to SHOW
availed of by the United States is permissible, if, in the CAUSE in writing by July 31, 2006, why it should not ap-
judgment of the district court, such a trial can be carried point an expert pursuant to FRE 706 to assist in the man-
out without substantial risk that secret information will be ner stated above. The responses should propose nominees
publicly divulged”). for the expert position and should also state the parties'
views regarding the means by which the court should re-
The court contemplates that the individual would be one view any future classified submissions. Moreover, the
who had a security *1011 clearance for receipt of the parties should describe what portions of this case, if any,
most highly sensitive information and had extensive ex- should be stayed if this order is appealed.
perience in intelligence matters. This individual could
perform a number of functions; among others, these might IV
include advising the court on the risks associated with dis-
In sum, the court DENIES the government's motion to
closure of certain information, the manner and extent of
dismiss, or in the alternative, for summary judgment on
appropriate disclosures and the parties' respective conten-
the basis of state secrets and DENIES AT & T's motion to
tions. While the court has at least one such individual in
dismiss. As noted in section III, supra, the parties are
mind, it has taken no steps to contact or communicate
ORDERED TO SHOW CAUSE in writing by July 31,
with the individual to determine availability or other mat-
2006, why the court should not appoint an expert pursuant
ters. This is an appropriate subject for discussion with the
to FRE 706 to assist the court. The parties' briefs should
parties.
also address whether this action should be stayed pending
The court also notes that should it become necessary for an appeal pursuant to 28 U.S.C. § 1292(b).
the court to review additional classified material, it may
The parties are also instructed to appear on August 8,
be preferable for the court to travel to the location of
2006, at 2 PM, for a further case management conference.
those materials than for them to be hand-carried to San
Francisco. Of course, a secure facility is available in San IT IS SO ORDERED.
Francisco and was used to house classified documents for
a few days while the court conducted its in camera review N.D.Cal.,2006.
for purposes of the government's instant motion. The Hepting v. AT & T Corp.
same procedures that were previously used could be em- 439 F.Supp.2d 974
ployed again. But alternative procedures may also be used
and may in some instances be more appropriate. Briefs and Other Related Documents (Back to top)
Finally, given that the state secrets issues resolved herein • 2006 WL 2203558 (Trial Motion, Memorandum and Af-
represent controlling questions of law as to which there is fidavit) Plaintiffs' Opposition to AT&T's Administrative
a substantial ground for difference of opinion and that an Motion for Interim Stay (Aug. 1, 2006) Original Image of
immediate appeal may materially advance ultimate ter- this Document (PDF)
mination of the litigation, the court certifies this order for • 2006 WL 2203553 (Trial Motion, Memorandum and Af-
the parties to apply for an immediate appeal pursuant to fidavit) Response of the United States to the Order to
28 U.S.C. § 1292(b). The court notes that if such an ap- Show Cause (Jul. 31, 2006) Original Image of this Docu-
peal is taken, the present proceedings do not necessarily ment (PDF)
- ER 339 -
- ER 340 -
Case M:06-cv-01791-VRW Document 127-2 Filed 01/17/2007 Page 1 of 2
- ER 341 -
Case M:06-cv-01791-VRW Document 127-2 Filed 01/17/2007 Page 2 of 2
- ER 342 -
Case M:06-cv-01791-VRW Document 175 Filed 02/22/2007 Page 1 of 9
1 PETER D. KEISLER
Assistant Attorney General, Civil Division
2 CARL J. NICHOLS
Deputy Assistant Attorney General
3 DOUGLAS N. LETTER
Terrorism Litigation Counsel
4 JOSEPH H. HUNT
Director, Federal Programs Branch
5 ANTHONY J. COPPOLINO
Special Litigation Counsel
6 tony.coppolino@usdoj.gov
ANDREW H. TANNENBAUM
7 andrew.tannenbaum@usdoj.gov
Trial Attorney
8 U.S. Department of Justice
Civil Division, Federal Programs Branch
9 20 Massachusetts Avenue, NW
10 Phone: (202) 514-4782
Fax: (202) 616-8470
11 Attorneys for Federal Defendants in their Official Capacities
and Federal Intervenor-Defendants (United States of America,
12 National Security Agency, President George W. Bush)
13
UNITED STATES DISTRICT COURT
14
NORTHERN DISTRICT OF CALIFORNIA
15
) No. M:06-cv-01791-VRW
16 IN RE NATIONAL SECURITY AGENCY )
TELECOMMUNICATIONS RECORDS ) NOTICE OF FILING BY THE UNITED
17 LITIGATION ) STATES OF PUBLIC DECLARATION
) OF LT. GEN. KEITH B. ALEXANDER
18 This Document Relates To: )
) Hon. Vaughn R. Walker
19 ALL ACTIONS )
)
20 )
21
22
23
24
25
26
27
Notice of Filing Public Declaration of Lt. Gen. Keith B. Alexander
28 MDL No. 06-1791-VRW
- ER 343 -
NOTICE OF FILING BY THE UNITED STATES OF PUBLIC DECLARATION OF

1 LT. GEN. KEITH B. ALEXANDER
2 The United States hereby provides notice of the filing of the attached unclassified
3 Declaration of Lieutenant General Keith B. Alexander, Director, National Security Agency,
4 dated January 24, 2007 (Exhibit 1). As indicated by counsel for the United States at the
5 February 9, 2007 hearing, this declaration was filed by the United States with the United States
6 Court of Appeals for the Sixth Circuit in ACLU v. NSA, Nos. 06-2095, 06-2140, and is submitted
7 in this proceeding to provide further public information regarding the orders of the Foreign
8 Intelligence Surveillance Court issued on January 10, 2007, beyond the information provided in
9 the notice filed by the United States on January 17, 2007. See Docket No. 127 (Notice by the
10 United States of Attorney General’s Letter to Congress). Also attached is an additional
11 paragraph that was originally included in the classified version of the declaration filed in Sixth
12 Circuit proceedings and was subsequently released as unclassified (Exhibit 2).
13 Dated: February 22, 2007
14 Respectfully submitted,
15 PETER D. KEISLER
Assistant Attorney General, Civil Division
16
CARL J. NICHOLS
17 Deputy Assistant Attorney General
18 DOUGLAS N. LETTER
Terrorism Litigation Counsel
19
JOSEPH H. HUNT
20 Director, Federal Programs Branch
21 s/ Anthony J. Coppolino
ANTHONY J. COPPOLINO
22 Special Litigation Counsel
tony.coppolino@usdoj.gov
23
s/ Andrew H. Tannenbaum
24 ANDREW H. TANNENBAUM
andrew.tannenbaum@usdoj.gov
25 Trial Attorney
U.S. Department of Justice
26 Civil Division, Federal Programs Branch
20 Massachusetts Avenue, NW
27
28 MDL No. 06-1791-VRW
-2-
- ER 344 -

1 Phone: (202) 514-4782/ (202) 514-4263
Fax: (202) 616-8470/ (202) 616-8202
2
Attorneys for Federal Defendants in their Official
3 Capacities and Federal Intervenor-Defendants (United
States of America, National Security Agency, President
4 George W. Bush)
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28 MDL No. 06-1791-VRW
-3-
- ER 345 -
EXHIBIT 1
- ER 346 -
- ER 347 -
- ER 348 -
- ER 349 -
- ER 350 -
- ER 351 -
ADRMOP, APPEAL, E-Filing, ProSe, STAYED
U.S. District Court

California Northern District (San Francisco)
CIVIL DOCKET FOR CASE #: 3:06-cv-00672-VRW
Hepting et al v. AT&T Corp. et al Date Filed: 01/30/2006

Assigned to: Hon. Vaughn R. Walker Jury Demand: Plaintiff
Lead case: M:06-cv-01791-VRW (View Member Cases) Nature of Suit: 440 Civil Rights: Other
Cause: 28:1331 Fed. Question Jurisdiction: Federal Question
Plaintiff
Tash Hepting represented by Cindy Ann Cohn
on Behalf of Themselves and All Others Electronic Frontier Foundation
Similarly Situated 454 Shotwell Street
San Francisco, CA 94110
415-436-9333 x 108
Email: cindy@eff.org
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
Jeff D Friedman
100 Pine Street
Suite 2600
415-288-4545
Fax: 415-288-4534
Email: JFriedman@lerachlaw.com
LEAD ATTORNEY
Bert Voorhees
Traber & Voorhees
128 North Fair Oaks Avenue
Suite 204
Pasadena, CA 91103
US
(626) 585-9611
Fax: (626) 577-7079
Email: bv@tvlegal.com
Corynne McSherry
Electronic Frontier Foundation
454 Shotwell Street
415-436-9333 x 122
Fax: (415) 436-9993
Email: corynne@eff.org
- ER 352 -
Elena Maria DiMuzio
Heller Ehrman LLP
333 Bush St.
415-772-6293
Fax: 415-772-1753
Email: Elena.DiMuzio@hellerehrman.com
Eric B. Fastiff
Lieff, Cabraser, Heimann & Bernstein,LLP
275 Battery Street

30th Floor
San Francisco, CA 94111-3339
415-956-1000
Fax: 415-956-1008
Email: efastiff@lchb.com
Eric A. Isaacson
Lerach Coughlin Stoia Geller Rudman &
Robbins LLP
655 West Broadway
Suite 1900
San Diego, CA 92101
(619) 231-1058
Email: erici@lerachlaw.com
James Samuel Tyre

Attorney at Law
10736 Jefferson Blvd.
# 512
Culver City, CA 90230
310-839-4114
Fax: 310-839-4602
Email: jstyre@jstyre.com
Kevin Stuart Bankston

454 Shotwell St
415-436-9333 x126
Fax: 415-436-9993
Email: bankston@eff.org
Kurt Opsahl
- ER 353 -
454 Shotwell Street
415-436-9333
Email: kurt@eff.org
Maria V. Morris
Robbins LLP
100 Pine Street
Suite 2600
415-288-4545
Fax: 415-288-4534
Email: mariam@lerachlaw.com
Michael M. Markman
Heller, Ehrman, White & McAuliffe LLP
275 Middlefield Road
Menlo Park, CA 94025
(650) 324-7089
Email: mmarkman@hewm.com
Reed R. Kathrein
Robbins LLP
100 Pine Street
Suite 2600
415-288-4545
Fax: 415-288-4534
Email: reedk@lerachlaw.com
Richard Roy Wiebe

Law Office Of Richard R. Wiebe
425 California Street
415-433-3200
Email: wiebe@pacbell.net
Robert D. Fram
Heller, Ehrman, White & McAuliffe LLP
333 Bush Street
415-772-6160
Email: rfram@hewm.com
- ER 354 -
Shana Eve Scarlett
Robbins LLP
100 Pine Street
Suite 2600
415-288-4545
Fax: (415) 288-4534
Email: shanas@lerachlaw.com
Theresa M. Traber, Esq.

Traber & Voorhees
128 North Fair Oaks Avenue
Suite 204
Pasadena, CA 91103
(626) 585-9611
Fax: (626) 577-7079
Email: tmt@tvlegal.com
Tze Lee Tien

1452 Curtis Street
Berkeley, CA 94702
(510) 525-0817
Email: tien@eff.org
Plaintiff
Gregory Hicks represented by Cindy Ann Cohn
on Behalf of Themselves and All Others (See above for address)
Similarly Situated LEAD ATTORNEY
Jeff D Friedman
(See above for address)
LEAD ATTORNEY
Bert Voorhees
Corynne McSherry
Elena Maria DiMuzio

- ER 355 -
Eric A. Isaacson
James Samuel Tyre


Kurt Opsahl
Maria V. Morris
Michael M. Markman
Reed R. Kathrein
Richard Roy Wiebe

Robert D. Fram
Shana Eve Scarlett


Tze Lee Tien

Plaintiff
Erik Knutzen represented by Cindy Ann Cohn
- ER 356 -
Jeff D Friedman
LEAD ATTORNEY
Bert Voorhees
Corynne McSherry
Elena Maria DiMuzio

Eric A. Isaacson
James Samuel Tyre


Kurt Opsahl
Maria V. Morris
Michael M. Markman
Reed R. Kathrein
Richard Roy Wiebe

Robert D. Fram
- ER 357 -
Shana Eve Scarlett


Tze Lee Tien

Plaintiff
Carolyn Jewel represented by Reed R. Kathrein
Bert Voorhees
Traber & Voorhees
128 North Fair Oaks Avenue, Suite 204
Pasadena, CA 91103
US
(626) 585-9611
Fax: (626) 577-7079
Email: bv@tvlegal.com
Cindy Ann Cohn

Corynne McSherry
454 Shotwell Street
415-436-9333 x 122
Email: corynne@eff.org
Elena Maria DiMuzio

Eric A. Isaacson
James Samuel Tyre

- ER 358 -
Jeff D Friedman

Kurt Opsahl
Maria V. Morris
Michael M. Markman
Richard Roy Wiebe

Robert D. Fram
Shana Eve Scarlett

Robbins LLP
100 Pine Street, 26th Floor
415-288-4545
Email: shanas@lerachlaw.com

Traber & Voorhees
128 N. Fair Oaks Avenue
Pasadena, CA 91103
(626) 585-9611
Email: tmt@tvlegal.com
Tze Lee Tien

- ER 359 -
Plaintiff
Benson B. Roe represented by Barry R. Himmelstein
Plaintiff in related case no. C-06-03467 Lieff Cabraser Heimann & Bernstein LLP
MMC 275 Battery Street
30th Floor
(415)956-1000
Fax: 415-956-1008
Email: bhimmelstein@lchb.com
LEAD ATTORNEY
V.
Defendant
AT&T Corp. represented by Bruce A. Ericson
Pillsbury Winthrop Shaw Pittman LLP
50 Fremont St.
Post Office Box 7880
(415) 983-1000
Fax: (415) 983-1200
Email: bruce.ericson@pillsburylaw.com
LEAD ATTORNEY
David L. Anderson
50 Fremont Street
US
415/983-1000
Fax: 415/983-1200
Email: dave.anderson@pillsburylaw.com
LEAD ATTORNEY
Jacob R. Sorensen
50 Fremont Street
415 983-1000
Fax: 415 983-1200
Email: jake.sorensen@pillsburylaw.com
LEAD ATTORNEY
Bradford Allan Berenson

Sidley Austin LLP
- ER 360 -
1501 K Street, NW
Washington, DC 20005
202-736-8971
Fax: 202-736-8711
Email: bberenson@sidley.com
David William Carpenter

Sidley Austin LLP
One S. Dearborn Street
Chicago, IL 60603
(312) 853-7000
Fax: (312) 853-7036
Email: dcarpenter@sidley.com
David L. Lawson
Sidley Austin Brown & Wood
172 Eye Street, N.W.
202-736-8000
Edward Robert McNicholas

Sidley Austin LLP
1501 K St., NW
202-736-8010
Fax: 202-736-8711
Email: emcnicholas@sidley.com
Marc H. Axelbaum
Pillsbury Winthrop Shaw
50 Fremont St
(415) 983-1967
Fax: (415) 983-1200
Email: marc.axelbaum@pillsburylaw.com
Defendant
AT&T Inc. represented by Bruce A. Ericson
LEAD ATTORNEY
Jacob R. Sorensen
LEAD ATTORNEY
- ER 361 -
Bradford Allan Berenson
David William Carpenter

David L. Lawson
Edward Robert McNicholas

V.
Intervenor Dft
United States of America represented by Andrew H Tannenbaum
USDOJ
20 Massachusetts Ave, NW
(202) 514-4782
Fax: (202) 616-8460
Email: andrew.tannenbaum@usdoj.gov
LEAD ATTORNEY
Anthony Joseph Coppolino

USDOJ
P.O. Box 883
(202) 514-4782
Fax: (202) 616-8460
Email: tony.coppolino@usdoj.gov
LEAD ATTORNEY
Peter D. Keisler
USDOJ
20 Massachusetts Ave, NW
202-514-4782
Fax: 202-616-8460
LEAD ATTORNEY
- ER 362 -
Renee S. Orleans
U.S. Department of Justice
20 Massachusetts Ave.
PO Box 883, Room 7120
202-514-4504
Email: renee.orleans@usdoj.gov
Amicus
Center for Constitutional Rights represented by Marc Van Der Hout
Center for Constitutional Rights Van Der Hout & Brigagliano
180 Sutter Street, Fifth Floor
415-981-3000
Email: ndca@vblaw.com
Amicus
Mark Klein represented by James J. Brosnahan
Morrison & Foerster LLP
425 Market Street
US
415-268-7000
Fax: 415-268-7522
Email: jbrosnahan@mofo.com
LEAD ATTORNEY
Brian Martinez
Morrison & Foerster LLP
425 Market Street
415-268-7000
Fax: 415-268-7522
Email: brianmartinez@mofo.com
Amicus
Amici Law Professors represented by Jennifer Stisa Granick
Amici Law Professors Center for Internet & Society
Stanford Law School
Crown Quadrangle
559 Nathan Abbott Way
Stanford, CA 94305-8610
650-724-0517
Fax: 650-723-4426
Email:
JENNIFER@LAW.STANFORD.EDU
LEAD ATTORNEY
- ER 363 -
Amicus
Susan Freiwald represented by Susan A. Freiwald
Amici Law Professor USF School of LAW
2130 Fulton St
415-422-6467
LEAD ATTORNEY
Jennifer Stisa Granick

Amicus
The Center for National Security represented by Terry Gross
Studies Gross & Belsky LLP
180 Montgomery Street
Suite 2200
415-544-0200
Fax: 415-544-0201
Email: terry@grossbelsky.com
Amicus
California First Amendment Coalition represented by Roger R. Myers
Holme Roberts & Owen LLP
560 Mission Street, 25th Floor
415-268-2000
Fax: 415-268-1999
Email: roger.myers@hro.com
LEAD ATTORNEY
Amicus
CNET News.com represented by Roger R. Myers
LEAD ATTORNEY
V.
Miscellaneous
Tom Campbell represented by Laurence F. Pulgram
Fenwick & West LLP
555 California Street, Suite 1200
(415) 875-2300
- ER 364 -
Fax: (415) 281-1350
Email: lpulgram@fenwick.com
LEAD ATTORNEY
Miscellaneous
Eric Schneider represented by Eric Schneider
1730 South Federal Hwy. #104
Delray Beach, FL 33483
US
561-542-7541
PRO SE
Miscellaneous
Willie H. Ellis
Miscellaneous
Daniel N. Gall represented by Daniel N. Gall
c/o Luna Innocations
2851 Commerce STreet
Blacksburg, VA 24060
US
PRO SE
V.
Intervenor
Associated Press represented by Karl Olson
Levy, Ram & Olson LLP
639 Front Street, 4th Floor
415/433-4949
Fax: 415-433-7311
Email: ko@lrolaw.com
Intervenor
Bloomberg News represented by Karl Olson
Intervenor
Los Angeles Times represented by Karl Olson
Intervenor
San Francisco Chronicle represented by Karl Olson
- ER 365 -
Intervenor
San Jose Mercury News represented by Karl Olson
Intervenor
USA Today represented by Karl Olson
Intervenor
Lycos, Inc. represented by Timothy L. Alger
TERMINATED: 08/08/2006 Quinn Emanuel Urquhart Oliver & Hedges
865 S. Figueroa st.

10th Floor
Los Angeles, CA 90017
213 443 3000
Email: timalger@quinnemanuel.com
LEAD ATTORNEY
Intervenor
Wired News represented by Timothy L. Alger
LEAD ATTORNEY
Intervenor
CondeNet Inc. represented by Timothy L. Alger
LEAD ATTORNEY
Date Filed # Docket Text

01/31/2006 1 COMPLAINT for Damages, Declaratory and Injunctive Relief; Demand for Jury
Trial against AT&T Corp., AT&T Inc. (Filing fee $ 250.00, receipt number
3381033.). Filed byGregory Hicks, Erik Knutzen, Tash Hepting. (gba, COURT
STAFF) (Filed on 1/31/2006) (Entered: 01/31/2006)
01/31/2006 2 ADR SCHEDULING ORDER: Case Management Statement due by 4/28/2006.
Case Management Conference set for 5/5/2006 01:30 PM. (Attachments: # 1
CMC Standing Order# 2 Standing Order #2)(gba, COURT STAFF) (Filed on
1/31/2006) (Entered: 01/31/2006)
01/31/2006 3 Certificate of Interested Entities or Persons filed by Tash Hepting, Gregory
Hicks and Erik Knutzen (gba, COURT STAFF) (Filed on 1/31/2006) (Entered:
01/31/2006)
01/31/2006 Summons Issued as to AT&T Corp., AT&T Inc.. (gba, COURT STAFF) (Filed
- ER 366 -
on 1/31/2006) (Entered: 01/31/2006)
01/31/2006 CASE DESIGNATED for Electronic Filing. (gba, COURT STAFF) (Filed on
1/31/2006) (Entered: 01/31/2006)
01/31/2006 4 Declination to Proceed Before a U.S. Magistrate Judge by Gregory Hicks, Erik
Knutzen, Tash Hepting. (gba, COURT STAFF) (Filed on 1/31/2006) (Entered:
01/31/2006)
01/31/2006 5 ORDER REASSIGNING CASE. Case reassigned to Judge Vaughn R. Walker
for all further proceedings. Judge Joseph C. Spero no longer assigned to
case.Signed by Executive Committee on 1/31/06. (as, COURT STAFF) (Filed on
1/31/2006) Additional attachment(s) added on 1/31/2006 (gba, COURT
STAFF). (Entered: 01/31/2006)
02/03/2006 6 NOTICE of Appearance by Jeff D Friedman (Friedman, Jeff) (Filed on
2/3/2006) (Entered: 02/03/2006)
02/13/2006 7 CLERK'S NOTICE : Initial Case Management Conference set for 5/16/2006
09:00 AM. Case Management Statement due by 5/9/2006. (Attachments: # 1 #
2) (cgd, COURT STAFF) (Filed on 2/13/2006) (Entered: 02/13/2006)
02/22/2006 8 AMENDED COMPLAINT FOR DAMAGES, DECLARATORY AND
INJUNCTIVE RELIEF against AT&T Corp., AT&T Inc.. Filed byGregory
Hicks, Erik Knutzen, Tash Hepting. (Scarlett, Shana) (Filed on 2/22/2006)
(Entered: 02/22/2006)
02/23/2006 9 NOTICE of Appearance by Maria V. Morris NOTICE OF APPEARANCE
(Morris, Maria) (Filed on 2/23/2006) (Entered: 02/23/2006)
02/23/2006 10 Summons Returned Unexecuted by Gregory Hicks, Erik Knutzen, Tash Hepting,
Carolyn Jewel (gsa, COURT STAFF) (Filed on 2/23/2006) (Entered:
02/27/2006)
02/23/2006 Summons Issued as to AT&T Corp., AT&T Inc.. (gsa, COURT STAFF) (Filed
on 2/23/2006) (Entered: 02/27/2006)
02/27/2006 11 NOTICE of Appearance by Eric A. Isaacson NOTICE OF APPEARANCE OF
ERIC A. ISAACSON (Isaacson, Eric) (Filed on 2/27/2006) (Entered: 02/27/2006)
02/28/2006 12 SUMMONS Returned Executed by Gregory Hicks, Erik Knutzen, Tash Hepting,
Carolyn Jewel. AT&T Corp. served on 2/24/2006, answer due 3/16/2006; AT&T
Inc. served on 2/24/2006, answer due 3/16/2006. (Scarlett, Shana) (Filed on
2/28/2006) (Entered: 02/28/2006)
03/06/2006 13 STIPULATION SETTING UNIFORM TIME FOR DEFENDANTS AND
POSSIBLE INTERVENER TO RESPOND TO PLAINTIFFS' AMENDED
COMPLAINT by AT&T Corp., AT&T Inc.. (Ericson, Bruce) (Filed on 3/6/2006)
(Entered: 03/06/2006)
03/06/2006 14 CERTIFICATE OF SERVICE by AT&T Corp., AT&T Inc. re 13 Stipulation
Setting Uniform Time For Defendants And Possible Intervener to Respond to
Plaintiffs' Amended Complaint (Ericson, Bruce) (Filed on 3/6/2006) (Entered:
03/06/2006)
03/30/2006 15 NOTICE of Appearance by Richard Roy Wiebe as additional counsel for
- ER 367 -
plaintiffs and the plaintiff class (Wiebe, Richard) (Filed on 3/30/2006) (Entered:
03/30/2006)
03/31/2006 16 MOTION for Preliminary Injunction filed by Gregory Hicks, Erik Knutzen,
Tash Hepting, Carolyn Jewel. Motion Hearing set for 6/8/2006 02:00 PM in
Courtroom 6, 17th Floor, San Francisco. (Kathrein, Reed) (Filed on 3/31/2006)
(Entered: 03/31/2006)
03/31/2006 17 Proposed Order re 16 MOTION for Preliminary Injunction by Gregory Hicks,
Erik Knutzen, Tash Hepting, Carolyn Jewel. (Kathrein, Reed) (Filed on
3/31/2006) (Entered: 03/31/2006)
03/31/2006 18 Declaration of Carolyn Jewel in Support of 16 MOTION for Preliminary
Injunction filed byGregory Hicks, Erik Knutzen, Tash Hepting, Carolyn Jewel.
(Related document(s)16) (Kathrein, Reed) (Filed on 3/31/2006) (Entered:
03/31/2006)
03/31/2006 19 Declaration of Cindy A. Cohn in Support of 16 MOTION for Preliminary
Injunction filed byGregory Hicks, Erik Knutzen, Tash Hepting, Carolyn Jewel.
(Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit
E# 6 Exhibit F# 7 Exhibit G# 8 Exhibit H# 9 Exhibit I# 10 Exhibit J)(Related
document(s)16) (Kathrein, Reed) (Filed on 3/31/2006) (Entered: 03/31/2006)
03/31/2006 20 Request for Judicial Notice re 16 MOTION for Preliminary Injunction filed
byGregory Hicks, Erik Knutzen, Tash Hepting, Carolyn Jewel. (Attachments: #
1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4# 5 Exhibit 5# 6 Exhibit 6# 7
Exhibit 7# 8 Exhibit 8)(Related document(s)16) (Kathrein, Reed) (Filed on
3/31/2006) (Entered: 03/31/2006)
03/31/2006 21 Proposed Order re 20 Request for Judicial Notice, by Gregory Hicks, Erik
Knutzen, Tash Hepting, Carolyn Jewel. (Kathrein, Reed) (Filed on 3/31/2006)
(Entered: 03/31/2006)
03/31/2006 22 Declaration of Lee Tien in Support of 16 MOTION for Preliminary Injunction
filed byGregory Hicks, Erik Knutzen, Tash Hepting, Carolyn Jewel. (Related
document(s)16) (Kathrein, Reed) (Filed on 3/31/2006) (Entered: 03/31/2006)
04/04/2006 23 MOTION for leave to appear in Pro Hac Vice - David W. Carpenter filed by
AT&T Corp., AT&T Inc. Fee paid - 3384002. (gsa, COURT STAFF) (Filed on
4/4/2006) (Entered: 04/05/2006)
04/04/2006 24 MOTION for leave to appear in Pro Hac Vice - Bradford A. Berenson filed by
AT&T Corp., AT&T Inc. Fee paid 3384003. (gsa, COURT STAFF) (Filed on
4/4/2006) (Entered: 04/05/2006)
04/04/2006 25 MOTION for leave to appear in Pro Hac Vice - David L. Lawson filed by AT&T
Corp., AT&T Inc. Fee paid - 3384005. (gsa, COURT STAFF) (Filed on
4/4/2006) (Entered: 04/05/2006)
04/04/2006 26 MOTION for leave to appear in Pro Hac Vice - Edward R. McNicholas filed by
AT&T Corp., AT&T Inc. Fee paid - 3384004. (gsa, COURT STAFF) (Filed on
4/4/2006) (Entered: 04/05/2006)
04/04/2006 Proposed Order granting [23] MOTION for leave to appear in Pro Hac Vice,
[24] MOTION for leave to appear in Pro Hac Vice, [25] MOTION for leave to
appear in Pro Hac Vice, [26] MOTION for leave to appear in Pro Hac Vice by
- ER 368 -
AT&T Corp., AT&T Inc.. (gsa, COURT STAFF) (Filed on 4/4/2006) (Entered:
04/05/2006)
04/04/2006 27 CERTIFICATE OF SERVICE by AT&T Corp., AT&T Inc. re [23] MOTION
for leave to appear in Pro Hac Vice, [24] MOTION for leave to appear in Pro
Hac Vice, [25] MOTION for leave to appear in Pro Hac Vice, [26] MOTION for
leave to appear in Pro Hac Vice, Proposed Order, (gsa, COURT STAFF) (Filed
on 4/4/2006) (Entered: 04/05/2006)
04/05/2006 28 MOTION for Leave to File Excess Pages FOR THE MOTION FOR
PRELIMINARY INJUNCTION filed by Gregory Hicks, Erik Knutzen, Tash
Hepting, Carolyn Jewel. (Kathrein, Reed) (Filed on 4/5/2006) (Entered:
04/05/2006)
04/05/2006 29 Proposed Order REGARDING THE MOTION TO EXTEND PAGE LIMITS by
Gregory Hicks, Erik Knutzen, Tash Hepting, Carolyn Jewel. (Kathrein, Reed)
(Filed on 4/5/2006) (Entered: 04/05/2006)
04/05/2006 30 NOTICE by Gregory Hicks, Erik Knutzen, Tash Hepting, Carolyn Jewel OF
MANUAL FILING OF MOTION FOR PRELIMINARY INJUNCTION (Kathrein,
Reed) (Filed on 4/5/2006) (Entered: 04/05/2006)
MANUAL FILING OF DECLARATION OF MARK KLEIN (Kathrein, Reed)
(Filed on 4/5/2006) (Entered: 04/05/2006)
MANUAL FILING OF DECLARATION OF J. SCOTT MARCUS (Kathrein,
04/05/2006 33 MOTION to Seal Document RE MOTION FOR PRELIMINARY INJUNCTION,
DECLARATIONS OF MARK KLEIN AND J. SCOTT MARCUS filed by Gregory
Hicks, Erik Knutzen, Tash Hepting, Carolyn Jewel. (Kathrein, Reed) (Filed on
4/5/2006) (Entered: 04/05/2006)
04/05/2006 34 Proposed Order REGARDING THE LODGING OF DOCUMENTS by Gregory
Hicks, Erik Knutzen, Tash Hepting, Carolyn Jewel. (Kathrein, Reed) (Filed on
4/5/2006) (Entered: 04/05/2006)
04/05/2006 35 Declaration of LEE TIEN IN SUPPORT OF MOTIONS TO LODGE AND TO
EXTEND PAGE LIMITS filed byGregory Hicks, Erik Knutzen, Tash Hepting,
Carolyn Jewel. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C)
(Kathrein, Reed) (Filed on 4/5/2006) (Entered: 04/05/2006)
04/05/2006 36 CERTIFICATE OF SERVICE by Gregory Hicks, Erik Knutzen, Tash Hepting,
Carolyn Jewel (Kathrein, Reed) (Filed on 4/5/2006) (Entered: 04/05/2006)
04/05/2006 229 AMENDED MOTION for Preliminary Injunction; Memorandum of Points and
Authorities in Support filed by Gregory Hicks, Erik Knutzen, Tash Hepting,
Benson B. Roe, Carolyn Jewel. FILED UNDER SEAL (gba, COURT STAFF)
(Filed on 4/5/2006) (Entered: 06/15/2006)
04/05/2006 230 Declaration of Mark Klein in Support of [229] AMENDED MOTION for
Preliminary Injunction filed byGregory Hicks, Erik Knutzen, Tash Hepting,
Benson B. Roe, Carolyn Jewel. FILED UNDER SEAL (Related document(s)
[229]) (gba, COURT STAFF) (Filed on 4/5/2006) (Entered: 06/15/2006)
- ER 369 -
04/05/2006 231 Declaration of J. Scott Marcus in Support of [229] AMENDED MOTION for
Benson B. Roe, Carolyn Jewel. FILED UNDER SEAL (Related document(s)
04/10/2006 37 ORDER by Chief Judge Vaughn R Walker granting 28 Motion for Leave to File
Excess Pages. Plaintiffs shall be permitted to file a memorandum of points and
authorities of 35 pages in support of their motion for preliminary injunction.
(cgd, COURT STAFF) (Filed on 4/10/2006) (Entered: 04/10/2006)
04/10/2006 38 MOTION to Seal Motion to Compel Return of Confidential Documents and
Declaration of James W. Russell filed by AT&T Corp., AT&T Inc.. (Ericson,
Bruce) (Filed on 4/10/2006) (Entered: 04/10/2006)
04/10/2006 39 Declaration of Bruce A. Ericson in Support of 38 MOTION to Seal Motion to
Compel Return of Confidential Documents and Declaration of James W. Russell
filed byAT&T Corp., AT&T Inc.. (Related document(s)38) (Ericson, Bruce)
(Filed on 4/10/2006) (Entered: 04/10/2006)
04/10/2006 40 Proposed Order re 38 MOTION to Seal Motion to Compel Return of
Confidential Documents and Declaration of James W. Russell, 39 Declaration in
Support, by AT&T Corp., AT&T Inc.. (Ericson, Bruce) (Filed on 4/10/2006)
(Entered: 04/10/2006)
04/10/2006 41 NOTICE by AT&T Corp., AT&T Inc. of Manual Filing of Motion of Defendant
AT&T Corp. to Compel Return of Confidential Documents; Supporting
Memorandum (Ericson, Bruce) (Filed on 4/10/2006) (Entered: 04/10/2006)
04/10/2006 42 NOTICE by AT&T Corp., AT&T Inc. re 41 Notice (Other) of Manual Filing of
Declaration of James W. Russell in Support of Motion to Defendant AT&T Corp.
to Compel Return of Confidential Documents (Ericson, Bruce) (Filed on
4/10/2006) (Entered: 04/10/2006)
04/10/2006 43 Declaration of Bruce A. Ericson in Support of 41 Notice (Other), 42 Notice
(Other) of Motion of Defendant AT&T Corp. to Compel Return of Confidential
Documents filed byAT&T Corp., AT&T Inc.. (Attachments: # 1 Exhibit A-K)
(Related document(s)41, 42) (Ericson, Bruce) (Filed on 4/10/2006) (Entered:
04/10/2006)
04/10/2006 44 Proposed Order re 43 Declaration in Support,, 41 Notice (Other), 42 Notice
(Other) Regarding AT&T Corp. Confidential Documents by AT&T Corp.,
AT&T Inc.. (Ericson, Bruce) (Filed on 4/10/2006) (Entered: 04/10/2006)
04/10/2006 45 MOTION to Shorten Time (Administrative) of Defendant AT&T Corp. for Order
Shortening Time as to AT&T's Motion to Compel Return of Confidential
Documents filed by AT&T Corp., AT&T Inc.. (Ericson, Bruce) (Filed on
4/10/2006) (Entered: 04/10/2006)
04/10/2006 219 MOTION to Compel Return of Confidential Documents; Supporting
Memorandum filed by AT&T Corp., AT&T Inc. FILED UNDER SEAL (gba,
COURT STAFF) (Filed on 4/10/2006) (Entered: 06/15/2006)
04/10/2006 220 Declaration of James W. Russell in Support of [219] MOTION to Compel filed
byAT&T Corp., AT&T Inc. FILED UNDER SEAL (Related document(s)
- ER 370 -
04/11/2006 46 Letter from Cindy A. Cohn re Administrative Motion for an Order Shortening
Time. (Kathrein, Reed) (Filed on 4/11/2006) (Entered: 04/11/2006)
04/11/2006 47 CERTIFICATE OF SERVICE by AT&T Corp., AT&T Inc. PROOF OF
SERVICE VIA HAND DELIVERY (Sorensen, Jacob) (Filed on 4/11/2006)
(Entered: 04/11/2006)
04/12/2006 48 MOTION to Seal Motion of Defendants AT&T Corp. to File Under Seal
Defendant AT&T Corp.'s Memorandum in Support of Filing Documents Under
Seal [Dkt. 30-32] filed by AT&T Corp., AT&T Inc.. (Ericson, Bruce) (Filed on
4/12/2006) (Entered: 04/12/2006)
04/12/2006 49 Declaration of Bruce A. Ericson in Support of 48 MOTION to Seal Motion of
Defendants AT&T Corp. to File Under Seal Defendant AT&T Corp.'s
Memorandum in Support of Filing Documents Under Seal [Dkt. 30-32] filed
byAT&T Corp., AT&T Inc.. (Related document(s)48) (Ericson, Bruce) (Filed on
4/12/2006) (Entered: 04/12/2006)
04/12/2006 50 Proposed Order re 48 MOTION to Seal Motion of Defendants AT&T Corp. to
File Under Seal Defendant AT&T Corp.'s Memorandum in Support of Filing
Documents Under Seal [Dkt. 30-32], 49 Declaration in Support, by AT&T
Corp., AT&T Inc.. (Ericson, Bruce) (Filed on 4/12/2006) (Entered: 04/12/2006)
04/12/2006 51 NOTICE by AT&T Corp., AT&T Inc. of Manual Filing of Defendant AT&T
Corp.'s Memorandum in Support of Filing Documents Under Seal [Dkt. 30-32]
(Ericson, Bruce) (Filed on 4/12/2006) (Entered: 04/12/2006)
04/12/2006 52 Declaration of Bruce A. Ericson in Support of 51 Notice (Other) Sealing
Documents [Dkt. 30-32] filed byAT&T Corp., AT&T Inc.. (Related document(s)
51) (Ericson, Bruce) (Filed on 4/12/2006) (Entered: 04/12/2006)
04/12/2006 53 Proposed Order re 51 Notice (Other), 52 Declaration in Support of Sealing
Documents [Dkt. 30-32] by AT&T Corp., AT&T Inc.. (Ericson, Bruce) (Filed on
4/12/2006) (Entered: 04/12/2006)
04/12/2006 54 ORDER by Chief Judge Vaughn R Walker granting [23] Motion Application for
Admission Pro Hac Vice David W. Carpenter (cgd, COURT STAFF) (Filed on
4/12/2006) (Entered: 04/12/2006)
04/12/2006 55 ORDER by Chief Judge Vaughn R Walker granting [24] Motion for Admission
of Attorney Pro Hac Vice Bradford A. Berenson, David L. Lawson and Edward
R. McNicholas. granting [25], granting [26]. (cgd, COURT STAFF) (Filed on
4/12/2006) (Entered: 04/12/2006)
04/12/2006 221 MEMORANDUM in Support of Filing Documents Under Seal [30-32] filed
byAT&T Corp., AT&T Inc. FILED UNDER SEAL (gba, COURT STAFF)
(Filed on 4/12/2006) (Entered: 06/15/2006)
04/13/2006 56 *** FILED IN ERROR. PLEASE SEE DOCKET #57. ***
CERTIFICATE OF SERVICE by AT&T Corp., AT&T Inc. PROOF OF
Modified on 4/14/2006 (ewn, COURT STAFF). (Entered: 04/13/2006)
(Entered: 04/13/2006)
- ER 371 -
MANUAL FILING OF PLAINTIFFS' OPPOSITION TO ADMINISTRATIVE
MOTION OF DEFENDANT AT&T CORP. FOR ORDER SHORTENING TIME
AS TO AT&T'S MOTION TO COMPEL RETURN OF CONFIDENTIAL
DOCUMENTS (Kathrein, Reed) (Filed on 4/13/2006) (Entered: 04/13/2006)
04/13/2006 222 Opposition to Administrative Motion of Defendant AT&T Corp. for Order
Shortening Time as to AT&T's Motion to Compel Return of Confidential
Documents filed byGregory Hicks, Erik Knutzen, Tash Hepting, Benson B. Roe,
Carolyn Jewel. FILED UNDER SEAL (gba, COURT STAFF) (Filed on
4/13/2006) (Entered: 06/15/2006)
04/14/2006 59 ORDER As in any case, the court has reviewed this matter for possible recusal.
In this case, because of the circumstances and reasons discussed in this order, the
court's review has been more extensive than in the usual instance. Although the
court has reached the conclusion that recusal is not necessary here, the court has
reached this conclusion without the benefit of guidance from the parties.
Accordingly, the court invites the parties to submit on or before April 21, 2006,
briefs no longer than 10 pages in length that address the matters stated
above.Signed by Chief Judge Vaughn R Walker on April 14, 2006. (vrwlc2,
COURT STAFF) (Filed on 4/14/2006). (Entered: 04/14/2006)
Carolyn Jewel AMENDED DECLARATION OF SERVICE (Morris, Maria)
(Filed on 4/17/2006) (Entered: 04/17/2006)
04/17/2006 61 NOTICE by Gregory Hicks, Erik Knutzen, Tash Hepting, Carolyn Jewel re 30
Notice (Other), 31 Notice (Other), 32 Notice (Other) NOTICE OF MANUAL
FILING OF PLAINTIFFS' OPPOSITION TO DEFENDANT AT&T CORP.'S
MEMORANDUM IN SUPPORT OF FILING DOCUMENTS UNDER SEAL
[DKT. 30-32] (Kathrein, Reed) (Filed on 4/17/2006) (Entered: 04/17/2006)
Notice (Other), 31 Notice (Other), 32 Notice (Other) NOTICE OF MANUAL
FILING OF DECLARATION OF KEVIN S. BANKSTON IN SUPPORT OF
PLAINTIFFS' OPPOSITION TO DEFENDANT AT&T CORP.'S
MEMORANDUM IN SUPPORT OF FILING DOCUMENTS UNDER SEAL
[DKT. 30-32] (Kathrein, Reed) (Filed on 4/17/2006) (Entered: 04/17/2006)
04/17/2006 63 NOTICE by Gregory Hicks, Erik Knutzen, Tash Hepting, Carolyn Jewel
NOTICE OF MANUAL FILING OF PLAINTIFFS' EVIDENTIARY
OBJECTIONS TO DECLARATION OF JAMES W. RUSSELL IN SUPPORT OF
MOTION OF DEFENDANT AT&T CORP. TO COMPEL RETURN OF
CONFIDENTIAL DOCUMENTS (Kathrein, Reed) (Filed on 4/17/2006)
(Entered: 04/17/2006)
04/17/2006 64 Proposed Order re 63 Notice (Other), Notice (Other), 61 Notice (Other), Notice
(Other), 62 Notice (Other), Notice (Other) [PROPOSED] ORDER DENYING
MOTION OF DEFENDANT AT&T CORP.'S TO FILE DOCUMENTS UNDER
SEAL by Gregory Hicks, Erik Knutzen, Tash Hepting, Carolyn Jewel. (Kathrein,
04/17/2006 223 Opposition to Defendant AT&T Corp.'s Memorandum in Support of Filing
Documents Under Seal [30-32] filed byGregory Hicks, Erik Knutzen, Tash
- ER 372 -
Hepting, Benson B. Roe, Carolyn Jewel. FILED UNDER SEAL (gba, COURT
04/17/2006 224 EVIDENTIAY OBJECTIONS to Declaration of James W. Russell in Support of
Motion of Defendant AT&T Corp. to Compel Return of Confidential Documents
by Gregory Hicks, Erik Knutzen, Tash Hepting, Benson B. Roe, Carolyn Jewel.
FILED UNDER SEAL (gba, COURT STAFF) (Filed on 4/17/2006) (Entered:
06/15/2006)
04/17/2006 225 Declaration of Kevin S. Bankston in Support of [223] Opposition filed
byGregory Hicks, Erik Knutzen, Tash Hepting, Benson B. Roe, Carolyn Jewel.
FILED UNDER SEAL (Related document(s)[223]) (gba, COURT STAFF)
(Filed on 4/17/2006) (Entered: 06/15/2006)
04/20/2006 65 ADR Clerks Notice re: Non-Compliance with Court Order. (tjs, COURT
04/21/2006 66 NOTICE of need for ADR Phone Conference (ADR L.R. 3-5 d) (Ericson, Bruce)
(Filed on 4/21/2006) (Entered: 04/21/2006)
04/21/2006 67 CERTIFICATE OF SERVICE by AT&T Corp., AT&T Inc. re 66 Notice of need
of ADR Phone Conference (ADR L.R. 3-5 d) (Ericson, Bruce) (Filed on
4/21/2006) (Entered: 04/21/2006)
04/21/2006 68 Brief re: Recusal filed byGregory Hicks, Erik Knutzen, Tash Hepting, Carolyn
Jewel. (Cohn, Cindy) (Filed on 4/21/2006) (Entered: 04/21/2006)
04/21/2006 69 RESPONSE in Support To Order Regarding Recusal (DKT. 59) filed byAT&T
Corp., AT&T Inc.. (Ericson, Bruce) (Filed on 4/21/2006) (Entered: 04/21/2006)
04/21/2006 70 CERTIFICATE OF SERVICE by AT&T Corp., AT&T Inc. re 69 Response in
Support To Order Regarding Recusal (DKT. 59) (Ericson, Bruce) (Filed on
4/21/2006) (Entered: 04/21/2006)
04/21/2006 71 NOTICE by AT&T Corp., AT&T Inc. of Manual Filing of Defendant AT&T
Corp.'s Reply Memorandum in Support of Filing Documents Under Seal [DKT.
30-32] (Ericson, Bruce) (Filed on 4/21/2006) (Entered: 04/21/2006)
04/21/2006 72 CERTIFICATE OF SERVICE by AT&T Corp., AT&T Inc. re 71 Notice (Other)
of Manual Filing of AT&T Corp.'s Reply Memorandum in Support of Filing
Documents Under Seal [DKT. 30-32] (Ericson, Bruce) (Filed on 4/21/2006)
(Entered: 04/21/2006)
04/21/2006 226 Reply Memorandum in Support of Filing Documents Under Seal [30-32] filed
byAT&T Corp., AT&T Inc. FILED UNDER SEAL (gba, COURT STAFF)
(Filed on 4/21/2006) (Entered: 06/15/2006)
04/24/2006 73 STIPULATION Re: Participation of Amici Curiae in Civil Local Rule 79-5
Proceedings; and [Proposed] Order by AT&T Corp., AT&T Inc.. (Ericson,
(Entered: 04/24/2006)
04/24/2006 75 CERTIFICATE OF SERVICE by AT&T Corp., AT&T Inc. re 73 Stipulation
- ER 373 -
Re: Participation of Amici Curiae in Civil Local Rule 79-5 Proceedings; and
[Proposed] Order (Ericson, Bruce) (Filed on 4/24/2006) (Entered: 04/24/2006)
04/24/2006 76 MOTION for Leave to Appear Amicus filed by Center for Constitutional Rights.
(Van Der Hout, Marc) (Filed on 4/24/2006) (Entered: 04/24/2006)
04/24/2006 77 Brief re 76 MOTION for Leave to Appear Amicus filed byCenter for
Constitutional Rights. (Related document(s)76) (Van Der Hout, Marc) (Filed on
4/24/2006) (Entered: 04/24/2006)
04/26/2006 78 ORDER by Chief Judge Vaughn R Walker GRANTING IN PART 45 Motion to
Shorten Time, GRANTING 76 Motion for Leave to File Amici Curiae Brief.
The court GRANTS IN PART defendants' motion for shortened time and sets
the following briefing schedule. Oral argument is specially set for May 17, 2006,
at 10:00 AM, on defendants' motion to compel and the parties' motions regarding
sealing. Plaintiffs' opposition to defendants' motion to compel is due on May 1,
2006, and defendants' reply is due on May 5, 2006. Plaintiffs' motion for a
preliminary injunction is specially set for hearing on June 21, 2006, at 10:00
AM. Because plaintiffs were permitted additional pages to file their motion,
defendants may file an opposition brief of up to 35 pages by May 18, 2006.
Plaintiffs may file their reply brief by May 25, 2006. At the May 17 hearing, the
parties may address case management and scheduling issues regarding other
motions in this case. The court therefore vacates the initial case management
conference currently set for May 16, 2006. Moreover, pursuant to a stipulation
by the parties and Civ L R 7-11, the court accepts the brief filed by amici curiae
Center for Constitutional Rights and the American Civil Liberties Union. Any
response to this brief must be e-filed by April 28, 2006.(vrwlc2, COURT
STAFF) (Filed on 4/26/2006). (Entered: 04/26/2006)
04/28/2006 79 MOTION to Dismiss Motion of Defendant AT&T, Inc. to Dismiss Plaintiffs'
Amended Complaint; Supporting Memorandum filed by AT&T Inc.. Motion
Hearing set for 6/8/2006 02:00 PM in Courtroom 6, 17th Floor, San Francisco.
04/28/2006 80 Declaration of Starlene Meyerkord in Support of 79 MOTION to Dismiss
Motion of Defendant AT&T, Inc. to Dismiss Plaintiffs' Amended Complaint;
Supporting Memorandum Declaration of Starlene Meyerkord in Support of
Motion of Defendant AT&T, Inc. to Dismiss Plaintiffs' Amended Complaint filed
byAT&T Inc.. (Related document(s)79) (Ericson, Bruce) (Filed on 4/28/2006)
(Entered: 04/28/2006)
04/28/2006 81 Proposed Order re 79 MOTION to Dismiss Motion of Defendant AT&T, Inc. to
Dismiss Plaintiffs' Amended Complaint; Supporting Memorandum, 80
Declaration in Support, [Proposed] Order Granting Defendant AT&T, Inc.'s
Motion to Dismiss Plaintiffs' Amended Complaint by AT&T Inc.. (Ericson,
04/28/2006 82 NOTICE by United States of America of First Statement of Interest of the United
States (Coppolino, Anthony) (Filed on 4/28/2006) (Entered: 04/28/2006)
04/28/2006 83 NOTICE of Appearance by Anthony Joseph Coppolino on behalf of the United
States of America (Coppolino, Anthony) (Filed on 4/28/2006) (Entered:
04/28/2006)
04/28/2006 84 RESPONSE in Support Defendant AT&T Corp.'s Response to Brief of Amici
- ER 374 -
Curiae Center for Constitutional Rights and American Civil Libeties Union in
Opposition to Filing Documents Under Seal [DKT. 30-32] filed byAT&T Corp..
04/28/2006 85 NOTICE of Appearance by Andrew H Tannenbaum on Behalf of the United
States of America (Tannenbaum, Andrew) (Filed on 4/28/2006) (Entered:
04/28/2006)
04/28/2006 86 MOTION to Dismiss Motion of Defendant AT&T Corp. To Dismiss Plaintiffs'
Amended Complaint; Supporting Memorandum filed by AT&T Corp.. Motion
04/28/2006 87 Request for Judicial Notice re 86 MOTION to Dismiss Motion of Defendant
AT&T Corp. To Dismiss Plaintiffs' Amended Complaint; Supporting
Memorandum Request for Judicial Notice in Support of Defendant AT&T
Corp.'s Motion to Dismiss filed byAT&T Corp.. (Attachments: # 1 Exhibit
Exhibit A Part 1# 2 Exhibit Exhibit A Part 2# 3 Exhibit Exhibit B through D# 4
Exhibit Exhibit E through J)(Related document(s)86) (Ericson, Bruce) (Filed on
4/28/2006) (Entered: 04/28/2006)
04/28/2006 88 Proposed Order re 86 MOTION to Dismiss Motion of Defendant AT&T Corp. To
Dismiss Plaintiffs' Amended Complaint; Supporting Memorandum, 87 Request
for Judicial Notice, [Proposed] Order Granting AT&T Corp.'s Motion to
Dismiss Plaintiffs' Amended Complaint by AT&T Corp.. (Ericson, Bruce) (Filed
on 4/28/2006) (Entered: 04/28/2006)
04/28/2006 89 MOTION to Dismiss Administrative Motion to Set Hearing Dates for
Defendants' Motions to Dismiss filed by AT&T Corp.. (Ericson, Bruce) (Filed
on 4/28/2006) (Entered: 04/28/2006)
04/28/2006 90 Declaration in Support of 89 MOTION to Dismiss Administrative Motion to Set
Hearing Dates for Defendants' Motions to Dismiss Declaration of Bruce A.
Ericson in Support of Administrative Motion to Set Hearing Dates for
Defendants' Motions to Dismiss filed byAT&T Corp.. (Related document(s)89)
04/28/2006 91 Proposed Order re 89 MOTION to Dismiss Administrative Motion to Set
Hearing Dates for Defendants' Motions to Dismiss, 90 Declaration in Support,
[Proposed] Order Granting Administrative Motion of Defendants AT&T Corp.
to Specially Set the Hearing on Defendants' Motion to Dismiss by AT&T Corp..
04/28/2006 92 CERTIFICATE OF SERVICE by AT&T Corp., AT&T Inc. re 86 MOTION to
Dismiss Motion of Defendant AT&T Corp. To Dismiss Plaintiffs' Amended
Complaint; Supporting Memorandum, 79 MOTION to Dismiss Motion of
Defendant AT&T, Inc. to Dismiss Plaintiffs' Amended Complaint; Supporting
Memorandum, 80 Declaration in Support,, 88 Proposed Order,, 87 Request for
Judicial Notice,, 89 MOTION to Dismiss Administrative Motion to Set Hearing
Dates for Defendants' Motions to Dismiss, 81 Proposed Order,, 90 Declaration in
Support,, 84 Response in Support,, 91 Proposed Order, Via U.S. Mail (Ericson,
05/01/2006 94 Letter from Plaintiffs re Discovery. (Cohn, Cindy) (Filed on 5/1/2006) (Entered:
05/01/2006)
- ER 375 -
05/01/2006 95 NOTICE by Gregory Hicks, Erik Knutzen, Tash Hepting, Carolyn Jewel of
Manual Filing of Notice of 30(b)(6) Deposition of AT&T Corp. (Cohn, Cindy)
(Filed on 5/1/2006) (Entered: 05/01/2006)
05/01/2006 96 MOTION to Remove Incorrectly Filed Document filed by Gregory Hicks, Erik
Knutzen, Tash Hepting, Carolyn Jewel. (Cohn, Cindy) (Filed on 5/1/2006)
(Entered: 05/01/2006)
05/01/2006 97 Declaration of Cindy Cohn in Support of Motion to Remove Incorrectly Filed
Document filed byGregory Hicks, Erik Knutzen, Tash Hepting, Carolyn Jewel.
(Cohn, Cindy) (Filed on 5/1/2006) (Entered: 05/01/2006)
05/01/2006 98 Proposed Order Granting Motion to Remove Incorrectly Filed Document by
Gregory Hicks, Erik Knutzen, Tash Hepting, Carolyn Jewel. (Cohn, Cindy)
(Filed on 5/1/2006) (Entered: 05/01/2006)
05/01/2006 99 Memorandum in Opposition TO THE MOTION OF DEFENDANT AT&T
CORP. TO COMPEL RETURN OF CONFIDENTIAL DOCUMENTS filed
byGregory Hicks, Erik Knutzen, Tash Hepting, Carolyn Jewel. (Morris, Maria)
(Filed on 5/1/2006) (Entered: 05/01/2006)
05/01/2006 100 Declaration of KEVIN S. BANKSTON in Support of 99 Memorandum in
Opposition TO THE MOTION OF DEFENDANT AT&T CORP. TO COMPEL
RETURN OF CONFIDENTIAL DOCUMENTS filed byGregory Hicks, Erik
Knutzen, Tash Hepting, Carolyn Jewel. (Related document(s)99) (Morris,
Maria) (Filed on 5/1/2006) (Entered: 05/01/2006)
05/01/2006 101 Proposed Order re 99 Memorandum in Opposition TO THE MOTION OF
DEFENDANT AT&T CORP. TO COMPEL RETURN OF CONFIDENTIAL
DOCUMENTS by Gregory Hicks, Erik Knutzen, Tash Hepting, Carolyn Jewel.
05/01/2006 227 NOTICE of 30(b)(6) Deposition of AT&T Corp. by Gregory Hicks, Erik
Knutzen, Tash Hepting, Benson B. Roe, Carolyn Jewel FILED UNDER SEAL
(gba, COURT STAFF) (Filed on 5/1/2006) (Entered: 06/15/2006)
05/02/2006 102 ADR Clerks Notice Setting ADR Phone Conference on 5/11/06 at 9:30 a.m.
Please take note that plaintiff's counsel initiates the call to all parties. (tjs,
05/02/2006 103 Letter from Defendant AT&T Corp. in Opposition to Plaintiffs' Request for
Leave to File Motion to Compel Discovery. (Ericson, Bruce) (Filed on 5/2/2006)
(Entered: 05/02/2006)
05/02/2006 104 CERTIFICATE OF SERVICE by AT&T Corp. re 103 Letter Proof of Service
Via US Mail (Ericson, Bruce) (Filed on 5/2/2006) (Entered: 05/02/2006)
05/03/2006 105 ORDER. On May 2, 2006, the court received a letter from a producer at CNBC
requesting permission to film inside the undersigned's courtroom at the May 17,
2006 hearing. The court DENIES this request for the May 17 hearing but the
issue of filming/taping may be re-considered for future hearings after the parties
have been given notice and an opportunity to be heard and to advise the court on
this issue. The court DIRECTS the clerk to place this letter in the file. Signed by
Chief Judge Vaughn R Walker on May 2, 2006. (vrwlc2, COURT STAFF)
(Filed on 5/3/2006) (Entered: 05/03/2006)
- ER 376 -
05/03/2006 106 Memorandum in Opposition to Administrative Motion for Order Shortening
Time as to AT&T's Motion to Dismiss filed byGregory Hicks, Erik Knutzen,
Tash Hepting, Carolyn Jewel. (Cohn, Cindy) (Filed on 5/3/2006) (Entered:
05/03/2006)
05/04/2006 107 Reply Memorandum Defendants' Reply in Support of Administrative Motion to
Set Hearing Dates for Motions to Dismiss filed byAT&T Corp., AT&T Inc..
05/04/2006 108 CERTIFICATE OF SERVICE by AT&T Corp., AT&T Inc. re 107 Reply
Memorandum Defendants' Reply in Support of Administrative Motion to Set
Hearing Dates for Motions to Dismiss (Ericson, Bruce) (Filed on 5/4/2006)
(Entered: 05/04/2006)
05/04/2006 109 CASE MANAGEMENT STATEMENT filed by Gregory Hicks, Erik Knutzen,
05/04/2006)
05/04/2006 110 ORDER by Chief Judge Vaughn R Walker granting 96 Motion to Remove
Incorrectly Filed DocumentPlaintiffs' Administrative Motion to Remove
Incorrectly Filed Document From Docket is hereby GRANTED. The Clerk will
remove document #93 from the court's electronic filing system.(vrwlc2, COURT
05/04/2006 111 MOTION to File Amicus Curiae Brief Notice of Motion and Motion of Mark
Klein for Leave to File Brief as Amicus Curiae filed by Mark Klein. (Brosnahan,
James) (Filed on 5/4/2006) (Entered: 05/04/2006)
05/04/2006 112 Declaration of James J. Brosnahan in Support of 111 MOTION to File Amicus
Curiae Brief Notice of Motion and Motion of Mark Klein for Leave to File Brief
as Amicus Curiae Declaration of James J. Brosnahan in Support of Motion of
Mark Klein for Leave to File Brief as Amicus Curiae filed byMark Klein.
(Attachments: # 1 Exhibit Exhibit A# 2 Exhibit Exhibit B)(Related document(s)
111) (Brosnahan, James) (Filed on 5/4/2006) (Entered: 05/04/2006)
05/04/2006 113 Proposed Order re 111 MOTION to File Amicus Curiae Brief Notice of Motion
and Motion of Mark Klein for Leave to File Brief as Amicus Curiae [Proposed]
Order Granting Mark Klein's Motion for Leave to File Brief as Amicus Curiae
by Mark Klein. (Brosnahan, James) (Filed on 5/4/2006) (Entered: 05/04/2006)
05/04/2006 114 Brief re 111 MOTION to File Amicus Curiae Brief Notice of Motion and Motion
of Mark Klein for Leave to File Brief as Amicus Curiae Brief of Amicus Curiae
Mark Klein filed byMark Klein. (Attachments: # 1 Exhibit Exhibit A)(Related
document(s)111) (Brosnahan, James) (Filed on 5/4/2006) (Entered: 05/04/2006)
05/04/2006 115 Appendix re 111 MOTION to File Amicus Curiae Brief Notice of Motion and
Motion of Mark Klein for Leave to File Brief as Amicus Curiae Amicus Curiae
Mark Klein's Submission of Legal Authority Regarding State Secrets Privilege
filed byMark Klein. (Attachments: # 1 Exhibit Tab 1# 2 Exhibit Tab 2# 3
Exhibit Tab 3# 4 Exhibit Tab 4# 5 Exhibit Tab 5# 6 Exhibit Tab 6# 7 Exhibit
Tab 7)(Related document(s)111) (Brosnahan, James) (Filed on 5/4/2006)
(Entered: 05/04/2006)
05/05/2006 116 CERTIFICATE OF SERVICE by Mark Klein re 111 MOTION to File Amicus
Curiae Brief Notice of Motion and Motion of Mark Klein for Leave to File Brief
- ER 377 -
as Amicus Curiae Certificate of Service by Mail (Martinez, Brian) (Filed on
5/5/2006) (Entered: 05/05/2006)
05/05/2006 117 NOTICE by AT&T Corp. Notice of Manual Filing of Defendant AT&T Corp.'s
Reply Memorandum in Support of Motion to Compel Return of Confidential
Documents [DKT. 41-44] (Ericson, Bruce) (Filed on 5/5/2006) (Entered:
05/05/2006)
05/05/2006 118 CERTIFICATE OF SERVICE by AT&T Corp. re 117 Notice (Other) Proof of
Service Via U.S. Mail (Ericson, Bruce) (Filed on 5/5/2006) (Entered:
05/05/2006)
05/05/2006 228 Reply Memorandum in Support of Motion to Compel Return of Confidential
Documens [41-44] filed byAT&T Corp., AT&T Inc.FILED UNDER SEAL
05/08/2006 119 ORDER by Chief Judge Vaughn R Walker granting 111 Motion for Leave to
File Amicus Curiae Brief(vrwlc2, COURT STAFF) (Filed on 5/8/2006)
(Entered: 05/08/2006)
05/08/2006 120 CERTIFICATE OF SERVICE by AT&T Corp., AT&T Inc. Defendant AT&T's
Corp.'s Reply Memorandum in Support of Motion to Compel Return of
Confidential Documents [Dkt. 41-44] (filed under seal) (Sorensen, Jacob) (Filed
on 5/8/2006) (Entered: 05/08/2006)
05/10/2006 121 Memorandum in Opposition Defendants' Response to Plaintiffs' Case
Management Statement [Dkt. 109] filed byAT&T Corp., AT&T Inc.. (Ericson,
05/11/2006 ADR Remark: ADR Phone Conference conducted on 5/11/06 by RWS. (tjs,
05/13/2006 122 MOTION to Intervene filed by United States of America. (Attachments: # 1)
(Coppolino, Anthony) (Filed on 5/13/2006) (Entered: 05/13/2006)
05/13/2006 123 MOTION for Hearing re 122 MOTION to Intervene filed by United States of
America. (Attachments: # 1 # 2)(Coppolino, Anthony) (Filed on 5/13/2006)
(Entered: 05/13/2006)
05/13/2006 124 MOTION to Dismiss or, in the Alternative, for Summary Judgment filed by
United States of America. (Attachments: # 1 # 2)(Coppolino, Anthony) (Filed on
5/13/2006) (Entered: 05/13/2006)
05/13/2006 125 NOTICE by United States of America re 124 MOTION to Dismiss or, in the
Alternative, for Summary Judgment Notice of Lodging of In Camera, Ex Parte
Material (Coppolino, Anthony) (Filed on 5/13/2006) (Entered: 05/13/2006)
05/13/2006 126 MOTION for Leave to File Excess Pages filed by United States of America.
(Attachments: # 1)(Coppolino, Anthony) (Filed on 5/13/2006) (Entered:
05/13/2006)
05/16/2006 127 ORDER by Chief Judge Vaughn R Walker granting 126 Motion for Enlargement
of Pages by the United States of America. (cgd, COURT STAFF) (Filed on
5/16/2006) (Entered: 05/16/2006)
05/16/2006 128 Memorandum in Opposition to Administrative Motion of the USA to Set Hearing
- ER 378 -
Date for Government Motion to Dismiss and Motion to Intervene filed
byGregory Hicks, Erik Knutzen, Tash Hepting, Carolyn Jewel. (Cohn, Cindy)
(Filed on 5/16/2006) (Entered: 05/16/2006)
05/16/2006 166 Letter from David L. Anderson, Attorney for Defendants, to the Honorable
Vaughn R. Walker dated 5/16/2006 requesting that the Court hold a brief
telepone confeence this afternoon to discuss the logistics for tomorrow's hearing
on AT&T's motion to compel return of its confidential and proprietary
documents and plaintiffs' motion to unseal certain documents that were filed
under seal. (gsa, COURT STAFF) (Filed on 5/16/2006) (Entered: 06/05/2006)
05/17/2006 129 Memorandum in Opposition TO MOTION TO SEAL; OPPOSITION TO
CLOSURE OF COURTROOM; MOTION TO INTERVENE filed byAssociated
Press, Bloomberg News, Los Angeles Times, San Francisco Chronicle, San Jose
Mercury News. (Olson, Karl) (Filed on 5/17/2006) (Entered: 05/17/2006)
05/17/2006 130 Minute Entry: Motion Hearing held on 5/17/2006 before Chief Judge Vaughn R
Walker (Date Filed: 5/17/2006) (Court Reporter Connie Kuhl) (vrwlc2, COURT
05/17/2006 305 MEMORANDUM in Support of Closure of Hearing filed byAT&T Corp.,
AT&T Inc.. (gsa, COURT STAFF) (Filed on 5/17/2006) (Entered: 07/12/2006)
05/18/2006 131 NOTICE of Appearance by Robert D. Fram on behalf of Heller Ehrman LLP
(Fram, Robert) (Filed on 5/18/2006) (Entered: 05/18/2006)
Carolyn Jewel re 131 Notice of Appearance (Markman, Michael) (Filed on
5/18/2006) (Entered: 05/18/2006)
05/19/2006 133 MOTION to Intervene Notice of Motion and Motion for Leave to Intervene;
Notice of Motion and Motion to Unseal Documents filed by USA Today,
Associated Press, Bloomberg News, Los Angeles Times, San Francisco
Chronicle, San Jose Mercury News. Motion Hearing set for 6/23/2006 09:30 AM
in Courtroom 6, 17th Floor, San Francisco. (Attachments: # 1 Declaration of
Karl Olson in Support of Motion for Leave to Intervene and Motion to Unseal
Documents# 2 Proposed Order Granting Motions for Leave to Intervene and
Unseal Records)(Olson, Karl) (Filed on 5/19/2006) (Entered: 05/19/2006)
05/22/2006 134 MEMORANDUM in Support re 130 Motion Hearing PLAINTIFFS'
MEMORANDUM OF POINTS AND AUTHORITIES IN RESPONSE TO
COURT'S MAY 17, 2006 MINUTE ORDER filed byGregory Hicks, Erik
Knutzen, Tash Hepting, Carolyn Jewel. (Related document(s)130) (Scarlett,
Shana) (Filed on 5/22/2006) (Entered: 05/22/2006)
05/22/2006 135 Declaration in Support of 134 Memorandum in Support, DECLARATION OF
SHANA E. SCARLETT IN SUPPORT OF PLAINTIFFS' MEMORANDUM OF
POINTS AND AUTHORITIES IN RESPONSE TO COURT'S MAY 17, 2006
MINUTE ORDER filed byGregory Hicks, Erik Knutzen, Tash Hepting, Carolyn
Jewel. (Attachments: # 1 Exhibit 1)(Related document(s)134) (Scarlett, Shana)
(Filed on 5/22/2006) (Entered: 05/22/2006)
Memorandum in Support, MANUAL FILING NOTIFICATION REGARDING
PLAINTIFFS' MEMORANDUM OF POINTS AND AUTHORITIES IN
- ER 379 -
RESPONSE TO COURT'S MAY 17, 2006 MINUTE ORDER (Scarlett, Shana)
(Filed on 5/22/2006) (Entered: 05/22/2006)
05/22/2006 137 Declaration PROOF OF SERVICE filed byGregory Hicks, Erik Knutzen, Tash
Hepting, Carolyn Jewel. (Scarlett, Shana) (Filed on 5/22/2006) (Entered:
05/22/2006)
05/22/2006 138 TRANSCRIPT of Proceedings held on 5/17/2006 before Judge Vaughn R.
Walker. Court Reporter: Connie Kuhl.. (gsa, COURT STAFF) (Filed on
5/22/2006) (Entered: 05/23/2006)
05/23/2006 139 MOTION to Intervene and Unseal Documents filed by Lycos, Inc., Wired News.
Motion Hearing set for 6/29/2006 02:00 PM in Courtroom 6, 17th Floor, San
Francisco. (Attachments: # 1 Proposed Order)(Alger, Timothy) (Filed on
5/23/2006) (Entered: 05/23/2006)
05/23/2006 140 MOTION to Shorten Time on Motion to Intervene and Unseal Documents filed
by Lycos, Inc., Wired News. (Attachments: # 1 Proposed Order)(Alger,
Timothy) (Filed on 5/23/2006) (Entered: 05/23/2006)
05/24/2006 *** FILED IN ERROR. DOCUMENT LOCKED. PLEASE SEE DOCKET
#150. ***
Reply Memorandum [Redacted] Reply Memorandum of Defendant AT&T Corp.
in Response to Court's May 17, 2006 Minute Order filed byAT&T Corp..
(Ericson, Bruce) (Filed on 5/24/2006) Modified on 5/26/2006 (ewn, COURT
STAFF). Modified on 5/26/2006 (ewn, COURT STAFF). (Entered: 05/24/2006)
05/24/2006 142 NOTICE by AT&T Corp. Notice of Manual Filing of Reply Memorandum of
Defendant AT&T Corp. in Response to Court's May 17, 2006 Minute Order
05/24/2006 143 CERTIFICATE OF SERVICE by AT&T Corp. re [141] Reply Memorandum,
142 Notice (Other) Proof of Service Via U.S. Mail (Ericson, Bruce) (Filed on
5/24/2006) (Entered: 05/24/2006)
05/24/2006 144 CERTIFICATE OF SERVICE by Associated Press, Bloomberg News, Los
Angeles Times, San Francisco Chronicle, San Jose Mercury News, USA Today
re 133 MOTION to Intervene Notice of Motion and Motion for Leave to
Intervene; Notice of Motion and Motion to Unseal Documents (Olson, Karl)
(Filed on 5/24/2006) (Entered: 05/24/2006)
05/24/2006 145 RESPONSE in Support United States' Response to Plaintiffs' Memorandum of
Points and Authorities in Response to Court's May 17, 2006 Minute Order filed
byUnited States of America. (Attachments: # 1 Exhibit A -- El Masri Opinion
(E.D.Va.))(Orleans, Renee) (Filed on 5/24/2006) (Entered: 05/24/2006)
05/24/2006 157 CERTIFICATE OF SERVICE by AT&T Corp., AT&T Inc. re 150 Reply
Memorandum (gsa, COURT STAFF) (Filed on 5/24/2006) (Entered:
05/30/2006)
05/24/2006 163 MEMORANDUM in Response to Court's 5/17/2006 Minute Order re 130
Motion Hearing filed byGregory Hicks, Erik Knutzen, Tash Hepting, Carolyn
Jewel. FILED UNDER SEAL (Related document(s)130) (gsa, COURT STAFF)
(Filed on 5/24/2006) (Entered: 06/05/2006)
05/24/2006 164 Reply Memorandum of defedant AT&T Corp. in Response to Court's May 17,
- ER 380 -
2006 Minute Order to re 130 Motion Hearing by AT&T Corp., AT&T Inc.
FILED UNDER SEAL. (gsa, COURT STAFF) (Filed on 5/24/2006) (Entered:
06/05/2006)
05/25/2006 146 Letter from Electronic Frontier Foundation to Hon. Vaughn R. Walker. (Tien,
Tze) (Filed on 5/25/2006) (Entered: 05/25/2006)
05/25/2006 147 Declaration of Mark Klein in Support of Plaintiffs' Motion for Preliminary
Injunction [REDACTED] filed byGregory Hicks, Erik Knutzen, Tash Hepting,
Carolyn Jewel. (Tien, Tze) (Filed on 5/25/2006) (Entered: 05/25/2006)
Carolyn Jewel (Tien, Tze) (Filed on 5/25/2006) (Entered: 05/25/2006)
05/25/2006 149 MEMORANDUM in Support Motion for Preliminary Injunction; Plaintiffs'
Amended Notice of Motion and Motion for Preliminary Injunction
[REDACTED] filed byGregory Hicks, Erik Knutzen, Tash Hepting, Carolyn
Jewel. (Attachments: # 1 Supplement Document Part 2# 2 Supplement
Document Part 3# 3 Supplement Document Part 4)(Tien, Tze) (Filed on
5/25/2006) (Entered: 05/25/2006)
05/26/2006 150 Reply Memorandum [Redacted] Reply Memorandum of Defendant AT&T Corp.
in Response to Court's May 17, 2006 Minute Order CORRECTION OF
DOCKET #[141] filed byAT&T Corp.. (Ericson, Bruce) (Filed on 5/26/2006)
(Entered: 05/26/2006)
05/26/2006 151 Memorandum in Opposition AT&T's Opposition to Motion for Order Shortening
Time for Hearing on Motion of Lycos, Inc. and Wired News for Orders
Permitting Intervention and Unsealing Documents filed byAT&T Corp., AT&T
Inc.. (Ericson, Bruce) (Filed on 5/26/2006) (Entered: 05/26/2006)
05/26/2006 152 Declaration of Bruce A. Ericson in Support of 151 Memorandum in Opposition,
AT&T's Opposition to Motion for Order Shortening Time for Hearing on Motion
of Lycos, Inc. and Wired News for Orders Permitting Intervention and Unsealing
Documents filed byAT&T Corp., AT&T Inc.. (Related document(s)151)
05/26/2006 153 CERTIFICATE OF SERVICE by AT&T Corp., AT&T Inc. re 151
Memorandum in Opposition,, 152 Declaration in Support, (Ericson, Bruce)
(Filed on 5/26/2006) (Entered: 05/26/2006)
05/26/2006 154 MOTION to Remove Incorrectly Filed Document re [141] Reply Memorandum,
filed by AT&T Corp.. (Ericson, Bruce) (Filed on 5/26/2006) (Entered:
05/26/2006)
05/26/2006 155 Declaration of Bruce A. Ericson in Support of 154 MOTION to Remove
Incorrectly Filed Document re [141] Reply Memorandum, filed byAT&T Corp..
(Related document(s)154) (Ericson, Bruce) (Filed on 5/26/2006) (Entered:
05/26/2006)
05/26/2006 156 Proposed Order re 154 MOTION to Remove Incorrectly Filed Document re
[141] Reply Memorandum, by AT&T Corp.. (Ericson, Bruce) (Filed on
5/26/2006) (Entered: 05/26/2006)
06/02/2006 158 ORDER by Chief Judge Vaughn R Walker granting 140 Lycos Inc and Wired
News' Administrative Motion for an Order Shortening Time for hearing on their
- ER 381 -
motion to intervene and motion to unseal documents. Hearing on the Motion by
Lycos, Inc and Wired News to Intervene and Unseal Documents will be held on
6/23/2006 at 9:30 AM. Opposition due 6/12/2006. Reply due 6/19/2006. (cgd,
06/02/2006 159 ORDER by Chief Judge Vaughn R Walker granting 154 Motion to Remove
Incorrectly Filed Document,doc. #141. (cgd, COURT STAFF) (Filed on
6/2/2006) (Entered: 06/02/2006)
06/02/2006 160 Memorandum in Opposition DEFENDANT AT&T CORP.'S MEMORANDUM
IN OPPOSITION TO MOTION FOR LEAVE TO INTERVENE AND MOTION
TO UNSEAL DOCUMENTS filed byAT&T Corp.. (Ericson, Bruce) (Filed on
6/2/2006) (Entered: 06/02/2006)
06/02/2006 161 RESPONSE in Support of Motions of the San Francisco Chronicle et al. for
Leave to Intervene and to Unseal Records filed byGregory Hicks, Erik Knutzen,
Tash Hepting, Carolyn Jewel. (Tien, Tze) (Filed on 6/2/2006) (Entered:
06/02/2006)
06/02/2006 162 DECLARATION of Bruce A. Ericson in Opposition to 160 Memorandum in
Opposition DECLARATION OF BRUCE A. ERICSON IN SUPPORT OF
DEFENDANT AT&T CORP.'S MEMORANDUM IN OPPOSITION TO
MOTION FOR LEAVE TO INTERVENE AND MOTION TO UNSEAL
DOCUMENTS filed byAT&T Corp.. (Attachments: # 1 Exhibit Exhibit A# 2
Exhibit Exhibit B# 3 Exhibit Exhibit C# 4 Exhibit Exhibit D# 5 Exhibit Exhibit
E# 6 Exhibit Exhibit F# 7 Exhibit Exhibit G# 8 Exhibit Exhibit H)(Related
document(s)160) (Ericson, Bruce) (Filed on 6/2/2006) (Entered: 06/02/2006)
06/05/2006 165 MOTION to Related Case ADMINISTRATIVE MOTION TO CONSIDER
WHETHER CASES SHOULD BE RELATED filed by Benson B. Roe.
(Himmelstein, Barry) (Filed on 6/5/2006) (Entered: 06/05/2006)
06/06/2006 167 Declaration of ADAM L. RUBINGER IN SUPPORT OF PLAINTIFFS'
OPPOSITION TO DEFENDANT AT&T INC.'S MOTION TO DISMISS
AMENDED COMPLAINT filed byGregory Hicks, Erik Knutzen, Tash Hepting,
Carolyn Jewel. (Attachments: # 1 Exhibit A)(Morris, Maria) (Filed on 6/6/2006)
(Entered: 06/06/2006)
06/06/2006 168 Declaration of DANIEL O'BRIEN IN SUPPORT OF PLAINTIFFS'
OPPOSITION TO DEFENDANT AT&T INC.'S MOTION TO DISMISS
Carolyn Jewel. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4
Exhibit D)(Morris, Maria) (Filed on 6/6/2006) (Entered: 06/06/2006)
06/06/2006 169 Declaration of JAMES S. TYRE IN SUPPORT OF PLAINTIFFS' OPPOSITION
TO AT&T INC.'S MOTION TO DISMISS AMENDED COMPLAINT filed
1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E# 6 Exhibit F#
7 Exhibit G# 8 Exhibit H# 9 Exhibit I# 10 Exhibit J# 11 Exhibit K# 12 Exhibit
L# 13 Exhibit M# 14 Exhibit N# 15 Exhibit O# 16 Exhibit P# 17 Exhibit Q# 18
Exhibit R# 19 Exhibit S# 20 Exhibit T# 21 Exhibit U# 22 Exhibit V# 23 Exhibit
W# 24 Exhibit X# 25 Exhibit Y# 26 Exhibit Z)(Morris, Maria) (Filed on
6/6/2006) (Entered: 06/06/2006)
06/06/2006 170 Proposed Order DENYING AT&T INC.'S MOTION TO DISMISS AMENDED
- ER 382 -
COMPLAINT by Gregory Hicks, Erik Knutzen, Tash Hepting, Carolyn Jewel.
06/06/2006 171 ORDER re 145 Response in Support filed by United States of America, 134
Memorandum in Support filed by Tash Hepting, Gregory Hicks, Erik Knutzen,
Carolyn Jewel, 150 Reply Memorandum filed by AT&T Corp,Because review of
the classified documents is necessary to determine whether and to what extent
the state secrets privilege applies, the court ORDERS the government forthwith
to provide in camera and no later than June 9, 2006, the classified memorandum
and classified declarations of John D Negroponte and Keith B Alexander for
review by the undersigned and by any chambers personnel that he so
authorizes.Signed by Chief Judge Vaughn R Walker on 06/06/06. (vrwlc2,
COURT STAFF) (Filed on 6/6/2006). (Entered: 06/06/2006)
06/06/2006 172 MOTION for Leave to File Excess Pages for Plaintiff's Opposition to Motion to
Dismiss Amended Complaint by Defendant AT&T, Corp.; Notice of Motion;
Memorandum of Points and Authorities filed by Gregory Hicks, Erik Knutzen,
06/06/2006)
06/06/2006 173 Declaration of Michael M. Markman in Support of Plaintiffs' Motion to Extend
Page Limit for Opposition to Motion to Dismiss Amended Complaint by
Defendant AT&T, Corp. filed byGregory Hicks, Erik Knutzen, Tash Hepting,
Carolyn Jewel. (Cohn, Cindy) (Filed on 6/6/2006) (Entered: 06/06/2006)
06/06/2006 174 Memorandum in Opposition to Defendant AT&T Inc.'s Motion to Dismiss
Amended Complaint filed byGregory Hicks, Erik Knutzen, Tash Hepting,
Carolyn Jewel. (Morris, Maria) (Filed on 6/6/2006) (Entered: 06/06/2006)
06/06/2006 175 Proposed Order Granting Plaintiffs' Motion to Extend Page Limit by Gregory
Hicks, Erik Knutzen, Tash Hepting, Carolyn Jewel. (Cohn, Cindy) (Filed on
6/6/2006) (Entered: 06/06/2006)
06/06/2006 176 Memorandum in Opposition to Motion to Dismiss Amended Complaint by
Defendant AT&T, Corp. filed byGregory Hicks, Erik Knutzen, Tash Hepting,
Carolyn Jewel. (Cohn, Cindy) (Filed on 6/6/2006) (Entered: 06/06/2006)
06/06/2006 177 Proposed Order Denying AT&T Corp.'s Motion to Dismiss Plaintiffs' Amended
Complaint by Gregory Hicks, Erik Knutzen, Tash Hepting, Carolyn Jewel.
06/06/2006 178 Declaration of Daniel O'Brien in Support of 174 Memorandum in Opposition
[CORRECTED] Declaration of Daniel O'Brien in Support of Plaintiffs'
Opposition to Defendant AT&T Inc.'s Motion to Dismiss Amended Complaint
filed byGregory Hicks, Erik Knutzen, Tash Hepting, Carolyn Jewel.
(Attachments: # 1 Exhibit A1# 2 Exhibit A2# 3 Exhibit A3# 4 Exhibit B# 5
Exhibit C# 6 Exhibit D)(Related document(s)174) (Morris, Maria) (Filed on
6/6/2006) (Entered: 06/06/2006)
06/06/2006 179 Declaration of James S. Tyre in Support of 174 Memorandum in Opposition
[CORRECTED] Declaration of James S. Tyre in Support of Plaintiffs'
(Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit
E# 6 Exhibit F# 7 Exhibit G# 8 Exhibit H# 9 Exhibit I# 10 Exhibit J# 11 Exhibit
- ER 383 -
K# 12 Exhibit L# 13 Exhibit M# 14 Exhibit N# 15 Exhibit O# 16 Exhibit P# 17
Exhibit Q# 18 Exhibit R# 19 Exhibit S# 20 Exhibit T# 21 Exhibit U# 22 Exhibit
V# 23 Exhibit W# 24 Exhibit X# 25 Exhibit Y# 26 Exhibit Z)(Related document
(s)174) (Morris, Maria) (Filed on 6/6/2006) (Entered: 06/06/2006)
06/06/2006 180 Declaration of Adam L. Rubinger in Support of 174 Memorandum in Opposition
[CORRECTED] Declaration of Adam L. Rubinger in Support of Plaintiffs'
(Attachments: # 1 Exhibit A)(Related document(s)174) (Morris, Maria) (Filed
on 6/6/2006) (Entered: 06/06/2006)
06/06/2006 207 MOTION to Intervene and Consolidate similar and pending case number A-05-
CA-682-LY in the Western District of Texas at Austin filed by Willie H. Ellis.
06/08/2006 181 Memorandum in Opposition to motion to dismiss (notice of manual filing) filed
byGregory Hicks, Erik Knutzen, Tash Hepting, Carolyn Jewel. (Fram, Robert)
(Filed on 6/8/2006) (Entered: 06/08/2006)
06/08/2006 182 DECLARATION of Michael M. Markman in opposition to motion to dismiss
(notice of manual filing - decl. only) filed byGregory Hicks, Erik Knutzen, Tash
Hepting, Carolyn Jewel. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3#
4 Exhibit 4# 5 Exhibit 5# 6 Exhibit 6# 7 Exhibit 7# 8 Exhibit 8)(Fram, Robert)
(Filed on 6/8/2006) (Entered: 06/08/2006)
06/08/2006 183 MOTION to Seal Document opposition to motion to dismiss, and declaration in
support of motion to dismiss, First MOTION for Leave to File Excess Pages
filed by Gregory Hicks, Erik Knutzen, Tash Hepting, Carolyn Jewel. Motion
Hearing set for 6/23/2006 09:30 AM in Courtroom 6, 17th Floor, San Francisco.
(Fram, Robert) (Filed on 6/8/2006) (Entered: 06/08/2006)
06/08/2006 184 Declaration of Michael M. Markman in support of administrative motions to
extend page limit for opposition to United States' motion to dismiss and to lodge
documents with the Court (N.D. Cal. Civil Local Rules 7-11, 79-5) filed
byGregory Hicks, Erik Knutzen, Tash Hepting, Carolyn Jewel. (Fram, Robert)
(Filed on 6/8/2006) (Entered: 06/08/2006)
06/08/2006 185 Proposed Order Granting Plaintiffs' Motion to Extend Page Limit and File
Documents Under Seal by Gregory Hicks, Erik Knutzen, Tash Hepting, Carolyn
Jewel. (Fram, Robert) (Filed on 6/8/2006) (Entered: 06/08/2006)
06/08/2006 191 NOTICE of Manual Filing by Gregory Hicks, Tash Hepting, Carolyn Jewel (gsa,
06/08/2006 192 Memorandum in Opposition re 124 MOTION to Dismiss or, in the Alternative,
for Summary Judgment filed byGregory Hicks, Tash Hepting, Carolyn Jewel.
FILED UNDER SEAL (gsa, COURT STAFF) (Filed on 6/8/2006) (Entered:
06/12/2006)
06/08/2006 193 NOTICE OF MANUAL FILING by Gregory Hicks, Tash Hepting, Carolyn
Jewel (gsa, COURT STAFF) (Filed on 6/8/2006) (Entered: 06/12/2006)
06/08/2006 194 DECLARATION of Michael M. Markman in Opposition to 124 MOTION to
Dismiss or, in the Alternative, for Summary Judgment filed byGregory Hicks,
- ER 384 -
Tash Hepting, Carolyn Jewel. (Related document(s)124) (gsa, COURT STAFF)
(Filed on 6/8/2006) (Entered: 06/12/2006)
06/09/2006 186 Reply Memorandum re 133 MOTION to Intervene Notice of Motion and Motion
for Leave to Intervene; Notice of Motion and Motion to Unseal Documents filed
byAssociated Press, Bloomberg News, Los Angeles Times, San Francisco
Chronicle, San Jose Mercury News, USA Today. (Olson, Karl) (Filed on
6/9/2006) (Entered: 06/09/2006)
06/09/2006 187 Declaration of Karl Olson in Support of 186 Reply Memorandum, in Support of
Press' Motion to Intervene and Unseal Records filed byAssociated Press,
Bloomberg News, Los Angeles Times, San Francisco Chronicle, San Jose
Mercury News, USA Today. (Attachments: # 1 Exhibit A)(Related document(s)
186) (Olson, Karl) (Filed on 6/9/2006) (Entered: 06/09/2006)
re 186 Reply Memorandum,, 187 Declaration in Support, (Olson, Karl) (Filed on
6/9/2006) (Entered: 06/09/2006)
06/09/2006 189 RELATED CASE ORDER by Chief Judge Vaughn R Walker granting 165
Motion to Relate Case. (cgd, COURT STAFF) (Filed on 6/9/2006) (Entered:
06/09/2006)
06/10/2006 190 RESPONSE in Support Response of AT&T Corp. to Plaintiffs' Motion for Leave
to File Excess Pages [Dkts. 172-73, 175] filed byAT&T Corp.. (Ericson, Bruce)
(Filed on 6/10/2006) (Entered: 06/10/2006)
06/12/2006 195 Memorandum in Opposition of Defendant AT&T Corp. to Motion of Lycos, Inc.
and Wired News for Orders Permitting Intervention and Unsealing Documents
[DKT. 139] filed byAT&T Corp., AT&T Inc.. (Ericson, Bruce) (Filed on
6/12/2006) (Entered: 06/12/2006)
06/12/2006 196 Declaration of Bruce A. Ericson in Support of 195 Memorandum in Opposition
of Defendant AT&T Corp. to Motion of Lycos, Inc. and Wired News for Orders
Permitting Intervention and Unsealing Documents [DKT. 139] filed byAT&T
Corp., AT&T Inc.. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4
Exhibit D# 5 Exhibit E# 6 Exhibit F# 7 Exhibit G# 8 Exhibit H# 9 Exhibit I, Part
One# 10 Exhibit I, Part Two# 11 Exhibit J# 12 Exhibit K)(Related document(s)
195) (Ericson, Bruce) (Filed on 6/12/2006) (Entered: 06/12/2006)
Motion and Administrative Motion Pursuant to Civil Local Rules 7-11 and 79-5
to Seal Plaintiffs' Statement in Support of Motion by Lycos, Inc. and Wired News
for Orders (1) Permitting Intervention and (2) Unsealing Documents (Morris,
06/12/2006 198 Proposed Order Regarding Notice of Motion and Administrative Motion
Pursuant to Civil Local Rules 7-11 and 79-5 to Seal Plaintiffs' Statement in
Support of Motion by Lycos, Inc. and Wired News for Orders (1) Permitting
Intervention and (2) Unsealing Documents by Gregory Hicks, Erik Knutzen,
Tash Hepting, Carolyn Jewel. (Morris, Maria) (Filed on 6/12/2006) (Entered:
06/12/2006)
- ER 385 -
Manual Filing Regarding Plaintiffs' Statement in Support of Motion by Lycos,
Inc. and Wired News for Orders (1) Permitting Intervention and (2) Unsealing
Documents (Morris, Maria) (Filed on 6/12/2006) (Entered: 06/12/2006)
06/12/2006 200 Declaration of Maria V. Morris in Support of 199 Notice (Other), Notice (Other)
Plaintiffs' Statement in Support of Motion by Lycos, Inc. and Wired News for
Orders (1) Permitting Intervention and (2) Unsealing Documents filed
1 Exhibit A# 2 Exhibit B# 3 Exhibit C)(Related document(s)199) (Morris,
06/12/2006 201 CERTIFICATE OF SERVICE by AT&T Corp., AT&T Inc. re 195
Memorandum in Opposition, 196 Declaration in Support,, Opposition of
Defendant AT&T Corp. to Motion of Lycos, Inc. and Wired News for Orders
Permitting Intervention and Unsealing Documents [DKT. 139] (Ericson, Bruce)
(Filed on 6/12/2006) (Entered: 06/12/2006)
06/12/2006 218 Statement in Support re 212 Order, filed byGregory Hicks, Erik Knutzen, Tash
Hepting, Benson B. Roe, Carolyn Jewel. (Related document(s)212) (gsa,
06/13/2006 202 Memorandum in Opposition PRESS INTERVENORS' OPPOSITION TO
ADMINISTRATIVE MOTION TO FILE OPPOSITION UNDER SEAL (Rule 7-11
(b)) filed byAssociated Press, Bloomberg News, Los Angeles Times, San
Francisco Chronicle, San Jose Mercury News, USA Today. (Olson, Karl) (Filed
on 6/13/2006) (Entered: 06/13/2006)
06/13/2006 203 Proposed Order re 202 Memorandum in Opposition, DENYING
ADMINISTRATIVE MOTION TO FILE OPPOSITION UNDER SEAL by
Associated Press, Bloomberg News, Los Angeles Times, San Francisco
Chronicle, San Jose Mercury News, USA Today. (Olson, Karl) (Filed on
6/13/2006) (Entered: 06/13/2006)
re 202 Memorandum in Opposition, (Olson, Karl) (Filed on 6/13/2006) (Entered:
06/13/2006)
06/13/2006 205 RESPONSE in Support RESPONSE OF AT&T CORP. TO PLAINTIFFS'
ADMINISTRATIVE MOTION TO FILE DOCUMENTS UNDER SEAL [DKTS.
183-85] filed byAT&T Corp., AT&T Inc.. (Ericson, Bruce) (Filed on 6/13/2006)
(Entered: 06/13/2006)
06/13/2006 206 CERTIFICATE OF SERVICE by AT&T Corp., AT&T Inc. TO RESPONSE OF
AT&T CORP. TO PLAINTIFFS' ADMINISTRATIVE MOTION TO FILE
DOCUMENTS UNDER SEAL [DKTS. 183-85] (Ericson, Bruce) (Filed on
6/13/2006) (Entered: 06/13/2006)
06/13/2006 208 MOTION to Related Case Administrative Motion of Defendant AT&T Corp. to
Consider Whether Cases Should Be Related (Nos. C-06-0672-VRW and C-06-
3596-VRW) filed by AT&T Corp.. (Ericson, Bruce) (Filed on 6/13/2006)
(Entered: 06/13/2006)
06/13/2006 209 MOTION to Related Case Proposed Order Deeming Cases Related filed by
AT&T Corp.. (Ericson, Bruce) (Filed on 6/13/2006) (Entered: 06/13/2006)
- ER 386 -
06/14/2006 210 CERTIFICATE OF SERVICE by AT&T Corp., AT&T Inc. re 208 MOTION to
Related Case Administrative Motion of Defendant AT&T Corp. to Consider
Whether Cases Should Be Related (Nos. C-06-0672-VRW and C-06-3596-VRW)
Proof of Service Via U.S. Mail (Ericson, Bruce) (Filed on 6/14/2006) (Entered:
06/14/2006)
06/14/2006 211 ORDER by Chief Judge Vaughn R Walker granting 183 Motion to Seal
Document, granting 183 Motion for Leave to File Excess Pages. The court
hereby Orders that Plaintiffs may file a memorandum of points and authorities of
60 pages in support of their opposition to the United States' motion to dismiss,
and may file this motion and the supporting declaration under seal. (cgd,
06/14/2006 212 ORDER granting request to file under seal Plaintiffs' Statement in support of
motion by Lycos, Inc and Wired News for orders permitting intervention and
unsealing documents re 197 Notice. Signed by Chief Judge Vaughn R Walker on
6/14/2006. (cgd, COURT STAFF) (Filed on 6/14/2006) (Entered: 06/14/2006)
06/14/2006 213 NOTICE by Gregory Hicks, Erik Knutzen, Tash Hepting, Carolyn Jewel
ADMINISTRATIVE MOTION FOR DESIGNATION OF INTERIM CLASS
COUNSEL (Scarlett, Shana) (Filed on 6/14/2006) (Entered: 06/14/2006)
06/14/2006 214 Declaration of Cindy A. Cohn in Support of 213 Notice (Other) DECLARATION
OF CINDY A. COHN IN SUPPORT OF ADMINISTRATIVE MOTION FOR
DESIGNATION OF INTERIM CLASS COUNSEL filed byGregory Hicks, Erik
Knutzen, Tash Hepting, Carolyn Jewel. (Attachments: # 1 Exhibit A# 2 Exhibit
B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E)(Related document(s)213) (Scarlett,
Shana) (Filed on 6/14/2006) (Entered: 06/14/2006)
06/14/2006 215 Proposed Order re 213 Notice (Other) [PROPOSED] CASE MANAGEMENT
ORDER NUMBER 1 by Gregory Hicks, Erik Knutzen, Tash Hepting, Carolyn
Jewel. (Scarlett, Shana) (Filed on 6/14/2006) (Entered: 06/14/2006)
06/14/2006 216 NOTICE by AT&T Corp. re 208 MOTION to Related Case Administrative
Motion of Defendant AT&T Corp. to Consider Whether Cases Should Be Related
(Nos. C-06-0672-VRW and C-06-3596-VRW) NOTICE OF REASSIGNMENT IN
CONNECTION WITH ADMINISTRATIVE MOTION OF DEFENDANT AT&T
CORP. TO CONSIDER WHETHER CASES SHOULD BE RELATED (Ericson,
06/15/2006 217 CERTIFICATE OF SERVICE by AT&T Corp., AT&T Inc. Proof of Service Via
U.S. Mail (Ericson, Bruce) (Filed on 6/15/2006) (Entered: 06/15/2006)
06/15/2006 256 MOTION for leave to appear in Pro Hac Vice - Susan Freiwald filed by Susan
Freiwald. (gsa, COURT STAFF) (Filed on 6/15/2006) (Entered: 06/20/2006)
06/15/2006 Proposed Order re [256] MOTION for leave to appear in Pro Hac Vice by Susan
Freiwald. (gsa, COURT STAFF) (Filed on 6/15/2006) (Entered: 06/20/2006)
06/16/2006 232 Amicus Curiae APPEARANCE entered by Jennifer Stisa Granick on behalf of
Amici Law Professors, Susan Freiwald. (Attachments: # 1 Proposed Order
Proposed Order re: Participation# 2 Freiwald et. al. Law Professors Amici Brief)
(Granick, Jennifer) (Filed on 6/16/2006) (Entered: 06/16/2006)
06/16/2006 233 MOTION for Leave to File Brief as Amicus Curiae filed by The Center for
- ER 387 -
National Security Studies. (Attachments: # 1 Proposed Order)(Gross, Terry)
(Filed on 6/16/2006) (Entered: 06/16/2006)
06/16/2006 234 Memorandum in Opposition re 208 MOTION to Related Case Administrative
Motion of Defendant AT&T Corp. to Consider Whether Cases Should Be Related
(Nos. C-06-0672-VRW and C-06-3596-VRW) by Plaintiffs Tom Campbell, et al.
and Dennis P. Riordan, et al. filed byTom Campbell. (Pulgram, Laurence) (Filed
on 6/16/2006) (Entered: 06/16/2006)
06/16/2006 235 Proposed Order re 234 Memorandum in Opposition, Denying Administrative
Motion to Consider Whether Cases Should Be Related by Tom Campbell.
(Pulgram, Laurence) (Filed on 6/16/2006) (Entered: 06/16/2006)
06/16/2006 236 Brief of Amicus Curiae in Opposition to Motion by the United States
Government to Dismiss or, in the Alternative, for Summary Judgment filed
byThe Center for National Security Studies. (Gross, Terry) (Filed on 6/16/2006)
(Entered: 06/16/2006)
06/16/2006 237 CERTIFICATE OF SERVICE by Tom Campbell re 234 Memorandum in
Opposition, to AT&T Corp's Administrative Motion to Consider Whether Cases
Should Be Related and Proposed Order (Pulgram, Laurence) (Filed on
6/16/2006) (Entered: 06/16/2006)
06/16/2006 238 Reply Memorandum re 79 MOTION to Dismiss Motion of Defendant AT&T,
Inc. to Dismiss Plaintiffs' Amended Complaint; Supporting Memorandum filed
byAT&T Inc.. (Sorensen, Jacob) (Filed on 6/16/2006) (Entered: 06/16/2006)
06/16/2006 239 Request for Judicial Notice re 79 MOTION to Dismiss Motion of Defendant
AT&T, Inc. to Dismiss Plaintiffs' Amended Complaint; Supporting
Memorandum, 238 Reply Memorandum in Support of Motion to Dismiss filed
byAT&T Inc.. (Attachments: # 1 Exhibit A)(Related document(s)79, 238)
(Sorensen, Jacob) (Filed on 6/16/2006) (Entered: 06/16/2006)
06/16/2006 240 Declaration of Starlene Meyerkord in Support of 238 Reply Memorandum, 79
MOTION to Dismiss Motion of Defendant AT&T, Inc. to Dismiss Plaintiffs'
Amended Complaint; Supporting Memorandum filed byAT&T Inc.. (Related
document(s)238, 79) (Sorensen, Jacob) (Filed on 6/16/2006) (Entered:
06/16/2006)
06/16/2006 241 Declaration of Joseph P. Tocco in Support of 238 Reply Memorandum, 79
MOTION to Dismiss Motion of Defendant AT&T, Inc. to Dismiss Plaintiffs'
Amended Complaint; Supporting Memorandum filed byAT&T Inc.. (Related
document(s)238, 79) (Sorensen, Jacob) (Filed on 6/16/2006) (Entered:
06/16/2006)
06/16/2006 242 CERTIFICATE OF SERVICE by AT&T Inc. re 240 Declaration in Support,,
239 Request for Judicial Notice,, 241 Declaration in Support,, 238 Reply
Memorandum (Sorensen, Jacob) (Filed on 6/16/2006) (Entered: 06/16/2006)
06/16/2006 243 STIPULATION and [Proposed] Order Granting AT&T Corp. Leave to File
Excess Pages by AT&T Corp.. (Ericson, Bruce) (Filed on 6/16/2006) (Entered:
06/16/2006)
06/16/2006 244 Reply to Opposition Reply Memorandum of Defendant AT&T Corp. in Support
of Motion to Dismiss Plaintiffs' Amended Complaint filed byAT&T Corp..
- ER 388 -
06/16/2006 245 Reply Memorandum re 124 MOTION to Dismiss or, in the Alternative, for
Summary Judgment and in Support of the Assertion of the Military and State
Secrets Privilege filed byUnited States of America. (Tannenbaum, Andrew)
(Filed on 6/16/2006) (Entered: 06/16/2006)
06/16/2006 246 NOTICE by United States of America of Lodging of In Camera, Ex Parte
Material (Tannenbaum, Andrew) (Filed on 6/16/2006) (Entered: 06/16/2006)
06/16/2006 247 Consent MOTION for Leave to File Excess Pages filed by United States of
America. (Tannenbaum, Andrew) (Filed on 6/16/2006) (Entered: 06/16/2006)
06/19/2006 248 Reply to Opposition re 139 MOTION to Intervene and Unseal Documents filed
byLycos, Inc., Wired News. (Alger, Timothy) (Filed on 6/19/2006) (Entered:
06/19/2006)
06/19/2006 249 Memorandum in Opposition re [207] MOTION to Intervene PLAINTIFFS'
OPPOSITION TO MOTION TO INTERVENE AND CONSOLIDATE SIMILAR
AND PENDING CASE NUMBER A-05-CA-682-LY IN THE WESTERN
DISTRICT OF TEXAS AT AUSTIN filed byGregory Hicks, Erik Knutzen, Tash
Hepting, Carolyn Jewel. (Scarlett, Shana) (Filed on 6/19/2006) (Entered:
06/19/2006)
06/19/2006 250 Declaration of Shana E. Scarlett in Support of 249 Memorandum in Opposition,
DECLARATION OF SHANA E. SCARLETT IN SUPPORT OF PLAINTFFS'
OPPOSITION TO MOTION INTERVENE AND CONSOLIDATE SIMILAR AND
PENDING CASE NUMBER A-05-CA-682-LY IN THE WESTERN DISTRICT OF
TEXAS AT AUSTIN filed byGregory Hicks, Erik Knutzen, Tash Hepting,
Carolyn Jewel. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C PART 1#
4 Exhibit C PART 2# 5 Exhibit C PART 3# 6 Exhibit C PART 4)(Related
document(s)249) (Scarlett, Shana) (Filed on 6/19/2006) (Entered: 06/19/2006)
06/19/2006 251 Proposed Order re 249 Memorandum in Opposition, [PROPOSED] ORDER
DENYING MOTION TO INTERVENE AND CONSOLIDATE SIMILAR AND
PENDING CASE NUMBER A-05-CA-682-LY IN THE WESTERN DISTRICT OF
TEXAS AT AUSTIN by Gregory Hicks, Erik Knutzen, Tash Hepting, Carolyn
Jewel. (Scarlett, Shana) (Filed on 6/19/2006) (Entered: 06/19/2006)
06/19/2006 252 Memorandum in Opposition of AT&T Corp. to Electronic Frontier Foundation's
Administrative Motion for Designation of Interim Class Counsel filed byAT&T
Corp.. (Sorensen, Jacob) (Filed on 6/19/2006) (Entered: 06/19/2006)
06/19/2006 253 Memorandum in Opposition ROE PLAINTIFFS' RESPONSE TO
ADMINISTRATIVE MOTION FOR DESIGNATION OF INTERIM CLASS
COUNSEL filed byBenson B. Roe. (Himmelstein, Barry) (Filed on 6/19/2006)
(Entered: 06/19/2006)
06/19/2006 254 Declaration of BARRY HIMMELSTEIN IN SUPPORT OF ROE PLAINTIFFS'
RESPONSE TO ADMINISTRATIVE MOTION FOR DESIGNATION OF
INTERIM CLASS COUNSEL filed byBenson B. Roe. (Attachments: # 1 Exhibit
A)(Himmelstein, Barry) (Filed on 6/19/2006) (Entered: 06/19/2006)
06/19/2006 255 Proposed Order re 253 Memorandum in Opposition, 254 Declaration in Support
[PROPOSED] ORDER DESIGNATING INTERIM CLASS COUNSEL
- ER 389 -
PURSUANT TO FED. R. CIV. P. 23(g) by Benson B. Roe. (Himmelstein, Barry)
(Filed on 6/19/2006) (Entered: 06/19/2006)
06/20/2006 257 CERTIFICATE OF SERVICE by AT&T Corp. re 252 Memorandum in
Opposition VIA HAND DELIVERY (Sorensen, Jacob) (Filed on 6/20/2006)
(Entered: 06/20/2006)
Opposition VIA OVERNIGHT COURIER (Sorensen, Jacob) (Filed on 6/20/2006)
(Entered: 06/20/2006)
Opposition VIA U.S. MAIL (Sorensen, Jacob) (Filed on 6/20/2006) (Entered:
06/20/2006)
06/20/2006 260 NOTICE by Gregory Hicks, Erik Knutzen, Tash Hepting, Carolyn Jewel Request
For Permission To Bring Audio/Visual Equipment To Hearing On June 23,
2006; [Proposed] Order (Markman, Michael) (Filed on 6/20/2006) (Entered:
06/20/2006)
06/20/2006 261 ORDERIn addition to all other matters pertinent to the hearing noticed for June
23, 2006, the parties should be prepared to address the questions provided in this
order.Signed by Chief Judge Vaughn R Walker on 06/20/06. (vrwlc2, COURT
06/20/2006 262 AFFIDAVIT in Opposition [REDACTED] of Michael Markman to Motion to
Dismiss, etc. by the United States Based on State Secrets Privilege filed
(Filed on 6/20/2006) (Entered: 06/20/2006)
06/20/2006 263 STIPULATION AND ORDER: Pursuant to the stipulation, AT&T may file a
reply to docket 176 of not more than 18 pages. Signed by Chief Judge Vaughn R
Walker on 6/20/2006. (cgd, COURT STAFF) (Filed on 6/20/2006) (Entered:
06/20/2006)
06/20/2006 264 Memorandum in Opposition [REDACTED] to Motion to Dismiss, etc. by the
United States Based on State Secrets Privilege filed byGregory Hicks, Erik
Knutzen, Tash Hepting, Carolyn Jewel. (Attachments: # 1 Supplement Redacted
Brief Part 2# 2 Supplement Redacted Brief Part 3# 3 Supplement Redacted Brief
Part 4)(Cohn, Cindy) (Filed on 6/20/2006) (Entered: 06/20/2006)
Carolyn Jewel (Cohn, Cindy) (Filed on 6/20/2006) (Entered: 06/20/2006)
06/20/2006 266 ORDER by Chief Judge Vaughn R Walker granting 247 unopposed Motion for
Leave to File Excess Pages by the United States of America. (cgd, COURT
06/20/2006 267 ORDER by Chief Judge Vaughn R Walker granting 208 Motion to Relate Cases
C06-0672 and C06-3596. (cgd, COURT STAFF) (Filed on 6/20/2006) (Entered:
06/20/2006)
06/20/2006 269 MOTION to File Amicus Curiae Brief filed by Eric Schneider. Motion Hearing
set for 6/23/2006 09:30 AM in Courtroom 6, 17th Floor, San Francisco. (gsa,
- ER 390 -
06/20/2006 271 Declaration of Eric Schneider in Support of 133 MOTION to Intervene Notice of
Motion and Motion for Leave to Intervene; Notice of Motion and Motion to
Unseal Documents filed byEric Schneider. (Related document(s)133) (gsa,
06/20/2006 Proposed Order re [269] MOTION to File Amicus Curiae Brief by Eric
Schneider. (gsa, COURT STAFF) (Filed on 6/20/2006) (Entered: 06/21/2006)
06/20/2006 272 CERTIFICATE OF SERVICE by Eric Schneider re Proposed Order, [269]
MOTION to File Amicus Curiae Brief, [271] Declaration in Support, (gsa,
06/21/2006 268 MOTION to File Amicus Curiae Brief filed by California First Amendment
Coalition, CNET News.com. Motion Hearing set for 6/23/2006 09:30 AM in
Courtroom 6, 17th Floor, San Francisco. (Myers, Roger) (Filed on 6/21/2006)
(Entered: 06/21/2006)
06/21/2006 270 Brief re 139 MOTION to Intervene and Unseal Documents Amici Curiae Brief
in Support of filed byCalifornia First Amendment Coalition, CNET News.com.
(Related document(s)139) (Myers, Roger) (Filed on 6/21/2006) (Entered:
06/21/2006)
06/21/2006 273 Declaration of Roger Myers in Support of 270 Brief [Amici Curiae] in Support
of Motion of Lycos and Wired News to Intervene and Unseal Documents filed
byCalifornia First Amendment Coalition, CNET News.com. (Related document
(s)270) (Myers, Roger) (Filed on 6/21/2006) (Entered: 06/21/2006)
06/21/2006 274 Proposed Order re 268 MOTION to File Amicus Curiae Brief by California First
Amendment Coalition, CNET News.com. (Myers, Roger) (Filed on 6/21/2006)
(Entered: 06/21/2006)
06/22/2006 275 ORDER Granting request to bring audio-visual equipment to hearing on
6/23/2006, re 260 Notice. Signed by Chief Judge Vaughn R Walker on
6/22/2006. (cgd, COURT STAFF) (Filed on 6/22/2006) (Entered: 06/22/2006)
Manual Filing of Letter to Hon. Vaughn R. Walker and Proof of Service (Cohn,
Cindy) (Filed on 6/22/2006) (Entered: 06/22/2006)
06/22/2006 277 Declaration of J. Scott Marcus [REDACTED] in Support of Plaintiffs' Motion for
Carolyn Jewel. (Attachments: # 1 Supplement Part 2# 2 Supplement Part 3# 3
Supplement Part 4# 4 Supplement Part 5# 5 Supplement Part 6# 6 Supplement
Part 7)(Cohn, Cindy) (Filed on 6/22/2006) (Entered: 06/22/2006)
06/22/2006 278 Letter from Plaintiffs to Hon. Vaughn R. Walker dated 6/22/2006. FILED
UNDER SEAL. (gsa, COURT STAFF) (Filed on 6/22/2006) Modified on
6/22/2006 (gsa, COURT STAFF). (Entered: 06/22/2006)
Benson B. Roe, Carolyn Jewel re [278] Letter (gsa, COURT STAFF) (Filed on
6/22/2006) (Entered: 06/22/2006)
06/23/2006 280 Declaration of James S. Tyre in Support of 174 Memorandum in Opposition
SUPPLEMENTAL DECLARATION OF JAMES S. TYRE IN SUPPORT OF
PLAINTIFFS' OPPOSITION TO AT&T INC.'S MOTION TO DISMISS
- ER 391 -
Carolyn Jewel. (Attachments: # 1 Exhibit A# 2 Exhibit B)(Related document(s)
174) (Scarlett, Shana) (Filed on 6/23/2006) (Entered: 06/23/2006)
06/23/2006 281 Minute Entry: Motion Hearing held on 6/23/2006 before Chief Judge Vaughn R
Walker re 12489 86 79 133 139; motion to intervene by the United States ;
motion to dismiss or in the alternative for summary judgment based on the
government's assertion of the state secrets doctrine; motion to dismiss by AT&T
Corp for failing to plead the absence of immunity and for lack of standing;
motion to dismiss by AT&T Inc for lack of personal jurisdiction; motion to
intervene and to unseal documents by various media entities; motion to intervene
and to unseal documents by Lycos, Inc and Wired News. The Court granted the
govt's unopposed motion to intervene. The Court also heard arguments from
counsel on the other motions and took those matters under submission. (Court
Reporter Connie Kuhl.) (cgd, COURT STAFF) (Date Filed: 6/23/2006)
(Entered: 06/26/2006)
06/26/2006 282 ORDER by Chief Judge Vaughn R Walker granting 122 the government's
motion to intervene. At the June 23, 2006, hearing, the court granted the
government's unopposed motion to intervene (Doc #122). The remaining
motions addressed by the parties at the hearing remain under submission.
(vrwlc2, COURT STAFF) (Filed on 6/26/2006) (Entered: 06/26/2006)
06/27/2006 283 ORDER by Chief Judge Vaughn R Walker granting [256] Application for
Admission of Attorney Susan A. Freiwald Pro Hac Vice. (cgd, COURT STAFF)
(Filed on 6/27/2006) (Entered: 06/27/2006)
6/27/2006) (Entered: 06/28/2006)
06/28/2006 285 Response to Question 8 (Summary) byGregory Hicks, Erik Knutzen, Tash
Hepting, Carolyn Jewel. (Cohn, Cindy) (Filed on 6/28/2006) (Entered:
06/28/2006)
Motion and Motion To File The Demonstrative Presentation Presented at The
June 23, 2006 Hearing Under Seal (DiMuzio, Elena) (Filed on 6/28/2006)
(Entered: 06/28/2006)
06/28/2006 287 Declaration of Elena M. DiMuzio in support of Administrative Motion To Lodge
Documents With The Court (N.D. Cal. Civil Local Rules 7-11, 79-5) filed
byGregory Hicks, Erik Knutzen, Tash Hepting, Carolyn Jewel. (DiMuzio, Elena)
(Filed on 6/28/2006) (Entered: 06/28/2006)
06/28/2006 288 Proposed Order Granting Plaintiffs' Motion To File Documents Under Seal by
Gregory Hicks, Erik Knutzen, Tash Hepting, Carolyn Jewel. (DiMuzio, Elena)
(Filed on 6/28/2006) (Entered: 06/28/2006)
Manual Filing (Demonstrative Presentation Presented at The June 23, 2006
Hearing) (DiMuzio, Elena) (Filed on 6/28/2006) (Entered: 06/28/2006)
06/30/2006 290 NOTICE by AT&T Corp., AT&T Inc. re [278] Letter NOTICE OF MANUAL
FILING OF LETTER OF BRUCE A. ERICSON IN RESPONSE TO LETTER OF
- ER 392 -
JASON SCHULTZ DATED JUNE 22, 2006 [DKT. 278] (Ericson, Bruce) (Filed
on 6/30/2006) (Entered: 06/30/2006)
07/03/2006 291 RESPONSE in Support Defendants' Response to Plaintiffs' Motion to File Their
Demonstrative Presentation From the June 23, 2006 Hearing Under Seal filed
byAT&T Corp., AT&T Inc.. (Ericson, Bruce) (Filed on 7/3/2006) (Entered:
07/03/2006)
07/03/2006 292 Declaration of Jacob R. Sorensen in Support of Defendants' Response to
Plaintiffs' Administrative Motion to File Their Demonstrative Presentation From
the June 23, 2006 Hearing Under Seal filed byAT&T Corp., AT&T Inc..
07/04/2006 293 ORDER The court has reviewed an April 13, 2006, letter sent from a James B
Fatchett and a June 25, 2006, letter sent from a Joseph M Gaffney. The clerk is
DIRECTED to file these letters and to serve the letters on the parties. Signed by
Chief Judge Vaughn R Walker on 7/4/2006.(vrwlc2, COURT STAFF) (Filed on
7/4/2006) (Entered: 07/04/2006)
07/05/2006 294 EXHIBITS A-K, Q-T, and V-Y to Declaration of J. Scott Marcus in Support of
Plaintiffs' Motion for Preliminary Injunction filed byGregory Hicks, Erik
Knutzen, Tash Hepting, Carolyn Jewel. (Attachments: # 1 Exhibit Exhibits Q-R#
2 Exhibit Exhibit S, Part 1# 3 Exhibit Exhibit S, Part 2# 4 Exhibit Exhibit S, Part
3# 5 Exhibit Exhibits T, V-Y)(Cohn, Cindy) (Filed on 7/5/2006) (Entered:
07/05/2006)
07/05/2006 295 Letter from James B. Fatchett dated 4/13/2006 concerning knowledge of
domestic listening activities conducted by the National Security Agency.. (gsa,
07/05/2006 296 Letter from Joseph M. Gaffney to Chief Judge Walker dated 6/25/2006
concerning the federal government's intrusion into this case.. (gsa, COURT
07/06/2006 297 MOTION for Leave to File Supplementary Material filed by Gregory Hicks,
Erik Knutzen, Tash Hepting, Carolyn Jewel. Motion Hearing set for 6/23/2006
09:30 AM in Courtroom 6, 17th Floor, San Francisco. (DiMuzio, Elena) (Filed
on 7/6/2006) (Entered: 07/06/2006)
07/06/2006 298 Declaration of Elena M. DiMuzio In Support of Motion To File Supplementary
Material filed byGregory Hicks, Erik Knutzen, Tash Hepting, Carolyn Jewel.
(Attachments: # 1 Exhibit 1)(DiMuzio, Elena) (Filed on 7/6/2006) (Entered:
07/06/2006)
07/06/2006 299 Proposed Order Granting Plaintiffs' Motion To file Supplementary Material by
Gregory Hicks, Erik Knutzen, Tash Hepting, Carolyn Jewel. (DiMuzio, Elena)
(Filed on 7/6/2006) (Entered: 07/06/2006)
07/07/2006 300 MEMORANDUM in Opposition to Plaintiff's True and Correct Copy
Declaration made on 6/19/2006 filed byWillie H. Ellis. (gsa, COURT STAFF)
(Filed on 7/7/2006) (Entered: 07/11/2006)
07/11/2006 301 CERTIFICATE OF SERVICE by AT&T Corp., AT&T Inc. re 290 Notice
(Other) (Ericson, Bruce) (Filed on 7/11/2006) (Entered: 07/11/2006)
- ER 393 -
SERVICE VIA HAND DELIVERY OF LETTER OF BRUCE A. ERICSON IN
RESPONSE TO LETTER OF JASON SCHULTZ DATED JUNE 22, 2006
07/11/2006 303 MOTION to Related Case filed by Tash Hepting. (Fastiff, Eric) (Filed on
7/11/2006) (Entered: 07/11/2006)
07/11/2006 304 Memorandum in Opposition United States' Opposition to Plaintiffs' Motion to
File Supplementary Material filed byUnited States of America. (Attachments: #
1 Proposed Order)(Orleans, Renee) (Filed on 7/11/2006) (Entered: 07/11/2006)
07/14/2006 306 Memorandum in Opposition HEPTING PLAINTIFFS' OPPOSITION TO
ADMINISTRATIVE MOTION TO CONSIDER WHETHER CASES SHOULD BE
RELATED filed byGregory Hicks, Erik Knutzen, Tash Hepting, Carolyn Jewel.
(Scarlett, Shana) (Filed on 7/14/2006) (Entered: 07/14/2006)
07/17/2006 307 ORDER by Chief Judge Vaughn R Walker granting 303 Motion to Relate Case
(C06-4221). (cgd, COURT STAFF) (Filed on 7/17/2006) (Entered: 07/17/2006)
07/20/2006 308 ORDER by Chief Judge Vaughn R Walker denying 86 Motion to Dismiss,
denying 124 Motion to Dismiss. The court DENIES the government's motion to
dismiss, or in the alternative, for summary judgment on the basis of state secrets
and DENIES AT&T's motion to dismiss. The parties are ORDERED TO SHOW
CAUSE in writing by July 31, 2006, why the court should not appoint an expert
pursuant to FRE 706 to assist the court. The parties' briefs should also address
whether this action should be stayed pending an appeal pursuant to 28 USC 1292
(b). The parties are also instructed to appear on August 8, 2006, at 2 PM, for a
further case management conference.(vrwlc2, COURT STAFF) (Filed on
7/20/2006). (Entered: 07/20/2006)
07/20/2006 Set/Reset Hearings: Further Case Management Conference set for 8/8/2006
02:00 PM. (gsa, COURT STAFF) (Filed on 7/20/2006) (Entered: 07/25/2006)
07/24/2006 309 ORDER The court has reviewed a July 20, 2006, letter sent from a Daniel Gall.
The clerk is DIRECTED to file this letter and to serve the letter on the
parties.Signed by Chief Judge Vaughn R Walker on 7/24/06. (vrwlc2, COURT
07/27/2006 310 MOTION to Stay PENDING DETERMINATION OF AT&T CORP.'S MOTION
TO STAY filed by AT&T Corp.. (Ericson, Bruce) (Filed on 7/27/2006) (Entered:
07/27/2006)
07/27/2006 311 Declaration of Jacob R. Sorensen in Support of 310 MOTION to Stay PENDING
DETERMINATION OF AT&T CORP.'S MOTION TO STAY filed byAT&T
Corp.. (Related document(s)310) (Ericson, Bruce) (Filed on 7/27/2006)
(Entered: 07/27/2006)
07/27/2006 312 Proposed Order re 310 MOTION to Stay PENDING DETERMINATION OF
AT&T CORP.'S MOTION TO STAY by AT&T Corp.. (Ericson, Bruce) (Filed on
7/27/2006) (Entered: 07/27/2006)
07/27/2006 313 Letter from Daniel N. Gall dated 7/20/2006 to the Honorable Vaughn R. Walker
regarding expert appointment for this case.. (gsa, COURT STAFF) (Filed on
7/27/2006) (Entered: 07/28/2006)
07/28/2006 314 CERTIFICATE OF SERVICE by AT&T Corp. re 311 Declaration in Support,
- ER 394 -
310 MOTION to Stay PENDING DETERMINATION OF AT&T CORP.'S
MOTION TO STAY, 312 Proposed Order Proof of Service Via U.S. Mail
07/31/2006 315 RESPONSE TO ORDER TO SHOW CAUSE by United States of America.
07/31/2006 316 NOTICE by United States of America re 315 Response to Order to Show Cause
United States' Notice of Lodging of In Camera, Ex Parte Material with Response
to Order to Show Cause (Coppolino, Anthony) (Filed on 7/31/2006) (Entered:
07/31/2006)
07/31/2006 317 RESPONSE in Support PLAINTIFFS' BRIEF ON ORDER TO SHOW CAUSE
ISSUED IN THE COURT'S JULY 20, 2006 ORDER filed byGregory Hicks, Erik
Knutzen, Tash Hepting, Carolyn Jewel. (Attachments: # 1 Exhibit A# 2 Exhibit
B# 3 Exhibit C)(Scarlett, Shana) (Filed on 7/31/2006) (Entered: 07/31/2006)
07/31/2006 318 ORDER by Chief Judge Vaughn R Walker granting 172 Plaintiffs' Motion for
Leave to extend page limit. (cgd, COURT STAFF) (Filed on 7/31/2006)
(Entered: 07/31/2006)
07/31/2006 319 ORDER by Chief Judge Vaughn R Walker granting 233 Motion of The Center
for National Security Studies for Leave to File as amicus curiea. (cgd, COURT
07/31/2006 320 ORDER by Chief Judge Vaughn R Walker granting 297 Plaintiffs' Motion to
File documents under seal. (cgd, COURT STAFF) (Filed on 7/31/2006)
(Entered: 07/31/2006)
07/31/2006 321 ORDER re 297 granting MOTION for Leave to File Supplementary Material
filed by Tash Hepting,, Gregory Hicks,, Erik Knutzen,, Carolyn Jewel, (cgd,
07/31/2006 322 ORDER re 232 Amicus Curiae Appearance, filed by Susan Freiwald,, Amici
Law Professors, (cgd, COURT STAFF) (Filed on 7/31/2006) (Entered:
07/31/2006)
07/31/2006 323 ORDER by Chief Judge Vaughn R Walker granting 268 Motion of CNET
News.com and California First Amendment Coalition for leave to File Amicus
Curiae Brief. (cgd, COURT STAFF) (Filed on 7/31/2006) (Entered: 07/31/2006)
07/31/2006 324 MOTION to Stay PROCEEDINGS PENDING APPEAL filed by AT&T Corp..
Motion Hearing set for 9/14/2006 02:00 PM in Courtroom 6, 17th Floor, San
Francisco. (Axelbaum, Marc) (Filed on 7/31/2006) (Entered: 07/31/2006)
07/31/2006 325 Proposed Order re 324 MOTION to Stay PROCEEDINGS PENDING APPEAL
by AT&T Corp.. (Axelbaum, Marc) (Filed on 7/31/2006) (Entered: 07/31/2006)
07/31/2006 326 RESPONSE TO ORDER TO SHOW CAUSE by AT&T Corp.. (Axelbaum,
Marc) (Filed on 7/31/2006) (Entered: 07/31/2006)
07/31/2006 327 Plaintiff's Demontrative Presentation Presented at the June 23, 2006 Hearing by
Gregory Hicks, Tash Hepting, Carolyn Jewel. FILED UNDER SEAL (gsa,
08/01/2006 328 CERTIFICATE OF SERVICE by AT&T Corp. re 326 Response to Order to
- ER 395 -
Show Cause, 325 Proposed Order, 324 MOTION to Stay PROCEEDINGS
PENDING APPEAL (Axelbaum, Marc) (Filed on 8/1/2006) (Entered:
08/01/2006)
08/01/2006 329 Memorandum in Opposition to AT&T Admin Motion for Interim Stay filed
(Filed on 8/1/2006) (Entered: 08/01/2006)
08/02/2006 330 ORDER by Chief Judge Vaughn R. Walker GRANTING 310 motion for interim
stay. All further proceedings are stayed until further order of the court. AT&T's
and the government's motions for a stay of proceedings pending appeal will be
heard on August 8, 2006, at 2:00 pm. (vrwlc2, COURT STAFF) (Filed on
8/2/2006) (Entered: 08/02/2006)
08/04/2006 331 STIPULATION AND [PROPOSED] ORDER RE SUBSTITUTION OF
PROPOSED INTERVENOR by CondeNet Inc., Wired News. (Alger, Timothy)
(Filed on 8/4/2006) (Entered: 08/04/2006)
08/07/2006 332 NOTICE by CondeNet Inc., Wired News NOTICE OF MATTER UNDER
SUBMISSION AND REQUEST TO BE HEARD AT CASE MANAGEMENT
CONFERENCE (Alger, Timothy) (Filed on 8/7/2006) (Entered: 08/07/2006)
08/08/2006 339 Minute Entry: Further Case Management Conference and hearing on Defendant
AT&T and USA's motion to stay pending appeal held on 8/8/2006. The court
determined that it would not, at this stage, appoint a technical advisor or expert
witness and that it would issue a stay of limited duration. (Court Reporter Sahar
McVickar.) (cgd, COURT STAFF) (Date Filed: 8/8/2006) (Entered: 08/15/2006)
08/10/2006 333 Letter from Cindy A. Cohn. (Cohn, Cindy) (Filed on 8/10/2006) (Entered:
08/10/2006)
Carolyn Jewel (Amended) (Cohn, Cindy) (Filed on 8/10/2006) (Entered:
08/10/2006)
08/11/2006 335 Letter from Bruce A. Ericson. (Attachments: # 1 Exhibit A)(Ericson, Bruce)
(Filed on 8/11/2006) (Entered: 08/11/2006)
08/14/2006 336 ORDER to stay all further proceedings until September 29, 2006. Signed by
Chief Judge Walker on 8/14/2006. (vrwlc2, COURT STAFF) (Filed on
8/14/2006) (Entered: 08/14/2006)
08/14/2006 337 CERTIFICATE OF SERVICE by AT&T Corp. re 335 Letter from Bruce A.
Ericson to Judge Vaughn Walker (Ericson, Bruce) (Filed on 8/14/2006)
(Entered: 08/14/2006)
08/14/2006 338 STIPULATION AND ORDER that CondeNet Inc. shall be substituted for
Lycos, Inc for all purposes in this matter. Signed by Chief Judge Vaughn R
08/14/2006)
Walker. Court Reporter: Sahar McVickar.. (gsa, COURT STAFF) (Filed on
8/14/2006) (Entered: 08/17/2006)
11/09/2006 341 NOTICE OF APPEAL/ORDER GRANTING PERMISSION TO APPEAL
- ER 396 -
PURSUANT TO 28 U.S.C. Section 1292(b) by AT&T Corp.. Filing fee $ 455,
receipt number 3392285. (gsa, COURT STAFF) (Filed on 11/9/2006) Modified
on 11/13/2006 (gsa, COURT STAFF). (Entered: 11/13/2006)
11/13/2006 Copy of Notice of Appeal and Docket sheet mailed to all counsel (gsa, COURT
11/13/2006 Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re
[341] Notice of Appeal (gsa, COURT STAFF) (Filed on 11/13/2006) (Entered:
11/13/2006)
11/15/2006 342 NOTICE OF APPEAL/ORDER GRANTING PERMISSION TO APPEAL
PURSUANT TO 28 U.S.C. Section 1292(b) by United States of America. (gsa,
11/15/2006 USCA Case Number 06-17137 for [342] Notice of Appeal filed by United States
of America,. (gsa, COURT STAFF) (Filed on 11/15/2006) (Entered:
11/20/2006)
11/15/2006 USCA Case Number 06-17132 for [341] Notice of Appeal filed by AT&T
Corp.,. (gsa, COURT STAFF) (Filed on 11/15/2006) (Entered: 11/20/2006)
11/17/2006 343 TRANSCRIPT DESIGNATION by AT&T Corp., AT&T Inc., for proceedings
held on 5/17/2006, 6/23/2006, 8/8/2006 before Judge Vaughn R. Walker.. (gsa,
12/07/2006 344 NOTICE by United States of America Regarding Transcript Orders
(Tannenbaum, Andrew) (Filed on 12/7/2006) (Entered: 12/07/2006)
12/22/2006 345 Certificate of Record Mailed to USCA re appeal [342] Notice of Appeal, [341]
Notice of Appeal: (gsa, COURT STAFF) (Filed on 12/22/2006) (Entered:
12/22/2006)
02/20/2007 346 ORDER by Chief Judge Walker granting in part and denying in part 133 motion
to intervene, granting in part and denying in part 139 motion to Intervene.
to stay. (vrwlc2, COURT STAFF) (Filed on 2/20/2007) (Entered: 02/20/2007)
PACER Service Center

Transaction Receipt
03/06/2007 08:39:53
PACER Login: Client Code:
3:06-cv-00672-
Description: Docket Report Search Criteria:
VRW
Billable Pages: 30 Cost: 2.40
- ER 397 -
E-Filing, ProSe, STAYED
U.S. District Court

California Northern District (MDL)
CIVIL DOCKET FOR CASE #: M:06-cv-01791-VRW
In re National Security Agency Telecommunications Records Date Filed: 08/14/2006

Litigation Jury Demand: Plaintiff
Assigned to: Hon. Vaughn R. Walker Nature of Suit: 440 Civil Rights: Other
Lead case: M:06-cv-01791-VRW Jurisdiction: Federal Question
Member cases:
3:06-cv-00672-VRW
3:06-cv-03467-VRW
3:06-cv-03574-VRW
3:06-cv-03596-VRW
3:06-cv-04221-VRW
3:06-cv-05063-VRW
3:06-cv-05064-VRW
3:06-cv-05065-VRW
3:06-cv-05066-VRW
3:06-cv-05067-VRW
3:06-cv-05267-VRW
3:06-cv-05268-VRW
3:06-cv-05269-VRW
3:06-cv-05340-VRW
3:06-cv-05341-VRW
3:06-cv-05343-VRW
3:06-cv-05452-VRW
3:06-cv-05485-VRW
3:06-cv-05576-VRW
3:06-cv-06222-VRW
3:06-cv-06224-VRW
3:06-cv-06225-VRW
3:06-cv-06253-VRW
3:06-cv-06254-VRW
3:06-cv-06294-VRW
3:06-cv-06295-VRW
3:06-cv-06313-VRW
3:06-cv-06385-VRW
3:06-cv-06387-VRW
3:06-cv-06388-VRW
3:06-cv-06434-VRW
3:06-cv-06435-VRW
3:06-cv-06570-VRW
3:06-cv-06924-VRW
3:06-cv-07934-VRW
3:07-cv-00109-VRW
3:07-cv-00464-VRW
3:07-cv-00693-VRW
3:07-cv-01187-VRW
- ER 398 -
3:07-cv-01242-VRW
3:07-cv-01243-VRW
Cause: 28:1331 Fed. Question
Date Filed # Docket Text

08/14/2006 1 TRANSFER ORDER from Judicial Panel on Multi District Litigation, pursuant
to 28 U.S.C. 1407, that the action is transferred to the Northern District of
California creating MDL No. 06-1791. (gsa, COURT STAFF) (Filed on
8/14/2006) Additional attachment(s) added on 10/5/2006 (gsa, COURT STAFF).
(Entered: 08/16/2006)
08/14/2006 CASE DESIGNATED for Electronic Filing. (gsa, COURT STAFF) (Filed on
8/14/2006) (Entered: 08/16/2006)
08/22/2006 2 NOTICE of Appearance by Anthony Joseph Coppolino , United States
Department of Justice, on behalf of Federal Defendants (Coppolino, Anthony)
(Filed on 8/22/2006) (Entered: 08/22/2006)
08/22/2006 3 NOTICE of Appearance by Andrew H Tannenbaum on behalf of the United
States of America (Tannenbaum, Andrew) (Filed on 8/22/2006) (Entered:
08/22/2006)
08/22/2006 4 NOTICE of Appearance by Alexander Kenneth Haas for the United States of
America (Haas, Alexander) (Filed on 8/22/2006) (Entered: 08/22/2006)
08/24/2006 11 ORDER Vacating Transfer Order signed by Wm. Terrell Hodges, Chairman,
Judicial Panel on Multidistrict Litigation (gsa, COURT STAFF) (Filed on
8/24/2006) (Entered: 08/29/2006)
08/25/2006 5 MOTION to Vacate Administrative Motion of AT&T and Verizon Defendants to
Vacate Pending Filing Deadlines in Cases Transferred by the Judicial Panel on
Multidistrict Litigation filed by AT&T Communications of California, Inc.,
AT&T Operations, Inc., Cellco Partnership, Illinois Bell Telephone Company,
MCI, LLC, New Cingular Wireless Services, Inc., Pacific Bell Telephone
Company, SBC Long Distance, LLC, Verizon Global Networks, Inc., Verizon
Northwest, Inc., Verizon Wireless LLC, American Telephone & Telegraph Co.,
AT&T Communications, Inc., AT&T Corp., AT&T Inc., Verizon
Communications, Inc.. (Axelbaum, Marc) (Filed on 8/25/2006) (Entered:
08/25/2006)
08/25/2006 6 Declaration of Marc H. Axelbaum in Support of 5 MOTION to Vacate
Administrative Motion of AT&T and Verizon Defendants to Vacate Pending
Filing Deadlines in Cases Transferred by the Judicial Panel on Multidistrict
Litigation filed byVerizon Global Networks, Inc., Verizon Northwest, Inc.,
Verizon Wireless LLC, American Telephone & Telegraph Co., AT&T
Communications, Inc., AT&T Corp., AT&T Inc., AT&T Communications of
California, Inc., AT&T Operations, Inc., Cellco Partnership, Illinois Bell
Telephone Company, MCI, LLC, New Cingular Wireless Services, Inc., Pacific
Bell Telephone Company, SBC Long Distance, LLC, Verizon Communications,
Inc.. (Attachments: # 1 Exhibit A# 2 Exhibit B)(Related document(s)5)
(Axelbaum, Marc) (Filed on 8/25/2006) (Entered: 08/25/2006)
08/25/2006 7 Declaration of Brian M. Boynton in Support of 5 MOTION to Vacate
- ER 399 -
Administrative Motion of AT&T and Verizon Defendants to Vacate Pending
Filing Deadlines in Cases Transferred by the Judicial Panel on Multidistrict
Litigation filed byVerizon Global Networks, Inc., Verizon Northwest, Inc.,
Verizon Wireless LLC, American Telephone & Telegraph Co., AT&T
California, Inc., AT&T Operations, Inc., Cellco Partnership, Illinois Bell
Telephone Company, MCI, LLC, New Cingular Wireless Services, Inc., Pacific
Bell Telephone Company, SBC Long Distance, LLC, Verizon Communications,
Inc.. (Related document(s)5) (Axelbaum, Marc) (Filed on 8/25/2006) (Entered:
08/25/2006)
08/25/2006 8 Proposed Order re 5 MOTION to Vacate Administrative Motion of AT&T and
Verizon Defendants to Vacate Pending Filing Deadlines in Cases Transferred by
the Judicial Panel on Multidistrict Litigation by Verizon Global Networks, Inc.,
Verizon Northwest, Inc., Verizon Wireless LLC, American Telephone &
Telegraph Co., AT&T Communications, Inc., AT&T Corp., AT&T Inc., AT&T
Communications of California, Inc., AT&T Operations, Inc., Cellco Partnership,
Illinois Bell Telephone Company, MCI, LLC, New Cingular Wireless Services,
Inc., Pacific Bell Telephone Company, SBC Long Distance, LLC, Verizon
Communications, Inc.. (Axelbaum, Marc) (Filed on 8/25/2006) (Entered:
08/25/2006)
08/25/2006 9 CERTIFICATE OF SERVICE by Verizon Global Networks, Inc., Verizon
Northwest, Inc., Verizon Wireless LLC, American Telephone & Telegraph Co.,
AT&T Communications, Inc., AT&T Corp., AT&T Inc., AT&T
Communications of California, Inc., AT&T Operations, Inc., Cellco Partnership,
Illinois Bell Telephone Company, MCI, LLC, New Cingular Wireless Services,
Inc., Pacific Bell Telephone Company, SBC Long Distance, LLC, Verizon
Communications, Inc. re 5 MOTION to Vacate Administrative Motion of AT&T
and Verizon Defendants to Vacate Pending Filing Deadlines in Cases
Transferred by the Judicial Panel on Multidistrict Litigation (Axelbaum, Marc)
(Filed on 8/25/2006) (Entered: 08/25/2006)
08/28/2006 10 CLERK'S NOTICE Advising Counsel of Receipt of cases from the Eastern
District of New York; District of Rhode Island; and the Southern District of
California. (Attachments: # 1 Marck, et al -v- Verizon communications, Inc., et
al; #(2) Mahoney -v- Verizon Communications; #(3) Mahoney -v- AT&T
Communications; # 4 Bissit, et al -v- Verizon Communications, inc., et al; # (5)
Souder -v- AT&T corp., et al) (rcs, COURT STAFF) (Filed on 8/28/2006)
(Entered: 08/28/2006)
08/30/2006 12 CLERK'S NOTICE Advising Counsel of Receipt of Cases from the District of
Montana and the Southern District of Texas. (Attachments: #(1) Fuller -v-
Verizon Communications Inc., et al; #(2) Trevino, et al -v- AT&T Corp., et al; #
(3) Doberg -v- AT&T Corp.) (rcs, COURT STAFF) (Filed on 8/30/2006)
(Entered: 08/30/2006)
08/30/2006 13 Memorandum in Opposition to Administrative Motion of AT&T and Verizon
Defendants to Vacate Pending Filing Deadlines filed byTash Hepting, Gregory
Hicks, Carolyn Jewel, Erik Knutzen. (Cohn, Cindy) (Filed on 8/30/2006)
(Entered: 08/30/2006)
08/30/2006 14 Memorandum in Opposition re 5 MOTION to Vacate Administrative Motion of
AT&T and Verizon Defendants to Vacate Pending Filing Deadlines in Cases
- ER 400 -
Transferred by the Judicial Panel on Multidistrict Litigation filed byElaine
Spielfogel-Landis. (Himmelstein, Barry) (Filed on 8/30/2006) (Entered:
08/30/2006)
08/31/2006 15 Practice and Procedure Order. Signed by Chief Judge Walker on 8/31/06.
08/31/2006 16 CLERK'S NOTICE Advising Counsel of Receipt of Cases from the Northern
District of Illinois, District of Oregon, and Eastern District of Louisiana.
(Attachments: #(1) Terkel, et al -v- AT&T Inc.; #(2) Hines, et al -v- Verizon
Northwest, Inc., etal; #(3) Herron, et al -v- Verizon Global networks, Inc., et al)
(rcs, COURT STAFF) (Filed on 8/31/2006) (Entered: 08/31/2006)
09/01/2006 17 NOTICE of Appearance by Samir Chandra Jain (Jain, Samir) (Filed on
9/1/2006) (Entered: 09/01/2006)
09/01/2006 18 MOTION for leave to appear in Pro Hac Vice of Leondra R. Kruger filed by
Verizon Global Networks, Inc., Verizon Northwest, Inc., Verizon Wireless LLC,
Cellco Partnership, MCI, LLC, Verizon Communications, Inc.(a corporation),
Verizon Communications, Inc.. (Attachments: # 1 Signature Page
(Declarations/Stipulations))(Rogers, Elizabeth) (Filed on 9/1/2006) (Entered:
09/01/2006)
09/01/2006 19 ORDER vacating pending filing deadlines by Chief Judge Walker granting 5
Motion to Vacate. (vrwlc2, COURT STAFF) (Filed on 9/1/2006) (Entered:
09/01/2006)
09/05/2006 20 NOTICE of Appearance by Reed R. Kathrein (Kathrein, Reed) (Filed on
9/5/2006) (Entered: 09/05/2006)
09/05/2006 21 NOTICE of Appearance by Shana Eve Scarlett (Scarlett, Shana) (Filed on
9/5/2006) (Entered: 09/05/2006)
09/05/2006 22 NOTICE of Appearance by Maria V. Morris (Morris, Maria) (Filed on 9/5/2006)
(Entered: 09/05/2006)
09/05/2006 23 NOTICE of Appearance by Candace J. Morey Mitchell Zimmerman, Jennifer L.
Kelley and Saina Shamilov (Morey, Candace) (Filed on 9/5/2006) (Entered:
09/05/2006)
09/05/2006 24 NOTICE of Appearance by Jeff D Friedman (Friedman, Jeff) (Filed on
9/5/2006) (Entered: 09/05/2006)
09/05/2006 MOTION for leave to appear in Pro Hac Vice - Leondra R. Kruger; Proposed
Order filed by Verizon Global Networks, Inc., Verizon Northwest, Inc., Verizon
Wireless LLC, Cellco Partnership, Verizon Communications, Inc.(a
corporation), Verizon Communications, Inc., MCI, LLC. (gsa, COURT STAFF)
(Filed on 9/5/2006) (Entered: 09/08/2006)
09/06/2006 25 NOTICE of Appearance by Eric A. Isaacson (Isaacson, Eric) (Filed on 9/6/2006)
(Entered: 09/06/2006)
09/06/2006 26 CLERK'S NOTICE Advising Counsel of Receipt of the Action James C.
Harrington, et al -v- AT&T Inc. from the Western District of Texas. (rcs,
- ER 401 -
09/07/2006 27 CLERK'S NOTICE Advising Counsel of Receipt of the Action Steven Schwarz,
et al -v- AT&T Corp., et al from the Northern District of Illinois. (rcs, COURT
09/07/2006 28 MOTION for leave to appear in Pro Hac Vice of Benjamin C. Mizer filed by
Verizon Global Networks, Inc., Verizon Northwest, Inc., Verizon Wireless LLC,
Cellco Partnership, Verizon Communications, Inc.(a corporation), Verizon
Communications, Inc., MCI, LLC, Verizon Communications, Inc., Verizon
Communications, Inc.. (Attachments: # 1 Signature Page
(Declarations/Stipulations))(Rogers, Elizabeth) (Filed on 9/7/2006) (Entered:
09/07/2006)
09/08/2006 29 NOTICE of Appearance by Marc H. Axelbaum Notice of Appearance on Behalf
of the AT&T Defendants (Axelbaum, Marc) (Filed on 9/8/2006) (Entered:
09/08/2006)
09/08/2006 Receipt for Application for Pro Hac Vice [#24] fee #3389813 from Benjamin C.
Mizer in the amount of $210.00 (gsa, COURT STAFF) (Filed on 9/8/2006)
(Entered: 09/12/2006)
09/13/2006 30 NOTICE of Appearance by Karl Olson (Olson, Karl) (Filed on 9/13/2006)
(Entered: 09/13/2006)
re 30 Notice of Appearance BY MAIL (Olson, Karl) (Filed on 9/13/2006)
(Entered: 09/13/2006)
09/13/2006 32 CLERK'S NOTICE Advising Counsel of Receipt of the Case Greg Conner, et al
-v- AT&T Corp., etal from the Eastern District of California. (Attachments: # 1
Prcatice and Procedure Order) (rcs, COURT STAFF) (Filed on 9/13/2006)
(Entered: 09/13/2006)
09/14/2006 33 ORDER by Chief Judge Vaughn R Walker granting 18 Motion Application for
Admission Pro Hac Vice of Leondra R. Kruger representing Verizon
Communications et al. (cgd, COURT STAFF) (Filed on 9/14/2006) (Entered:
09/14/2006)
09/15/2006 34 RESPONSE to AT&T's Response to August 14, 2006 Order in Hepting, Et al., v.
AT&T Corp., et al. (Dkt. No. 366) by AT&T Corp., AT&T, Inc., AT&T
Communications, Inc., AT&T Corp., AT&T, Inc., AT&T Corp., American
Telephone and Telegraph Company, Bellsouth Communication Systems, LLC,
BellSouth Telecommunications, Inc., AT&T Corp., Illinois Bell Telephone Co.,
BellSouth Communications Systems, LLC, BellSouth Corp., BellSouth
Telecomminications, Inc., American Telephone & Telegraph Co., AT&T
California, Inc., AT&T Operations, Inc., Illinois Bell Telephone Company, New
Cingular Wireless Services, Inc., Pacific Bell Telephone Company, SBC Long
Distance, LLC, AT&T Corp., AT&T Communications of California, AT&T
Corp., AT&T, Inc., AT&T Corp., AT&T Inc., AT&T, Inc., AT&T Corp., AT&T
Operations Inc., New Cingular Wireless Services, Inc., AT&T Corp.(a New
York corporation), AT&T Inc.(a Delaware corporation), SBC Long Distance,
LLC(a Delaware limited liability company doing business as AT&T Long
Distance), Pacific Bell Telephone Company(a California corporation doing
- ER 402 -
business as AT&T California), AT&T Communications of California, Inc.(a
California corporation). (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C#
4 Exhibit D)(Axelbaum, Marc) (Filed on 9/15/2006) (Entered: 09/15/2006)
09/15/2006 35 RESPONSE to Status Report of United States in Response to August 14, 2006
Order in Hepting action (06-cv-676) by George W. Bush, National Security
Agency, United States Of America. (Coppolino, Anthony) (Filed on 9/15/2006)
(Entered: 09/15/2006)
09/15/2006 36 STATUS REPORT Pursuant to August 14, 2006 Order by Tash Hepting,
Carolyn Jewel, Gregory Hicks, Erik Knutzen. (Cohn, Cindy) (Filed on
9/15/2006) (Entered: 09/15/2006)
09/25/2006 37 Conditional Transfer Order signed by Jeffery N. Luthi, Clerk of the Panel (gsa,
10/03/2006 38 CLERK'S NOTICE Advising Counsel of Receipt of Cases from the Southern
District of Indiana and the Northern District of Georgia. (Attachments: #(1)
Cross, et al -v- AT&T Communications, Inc., etal; #(2) Cross, et al -v- AT&T
Communications, Inc., etal; #(3) Guzzi -v- Bush, et al; #(4) Pretrial Order No. 1)
(rcs, COURT STAFF) (Filed on 10/3/2006) (Entered: 10/03/2006)
10/03/2006 39 MOTION Scheduling Order filed by Tash Hepting. (Attachments: # 1 Exhibit
AT&T's Answer)(Cohn, Cindy) (Filed on 10/3/2006) (Entered: 10/03/2006)
10/04/2006 41 Conditional Transfer ORDER signed by Jeffery N. Luthi, Clerk of the Panel.
(gsa, COURT STAFF) (Filed on 10/4/2006) (Entered: 10/06/2006)
10/05/2006 40 CLERK'S NOTICE Advising Counsel of Receipt of Cases from the Western
District of Washington and the District of Hawaii. (Attachments: #(1) Derosier -
v- Cingular Wireless, et al; #(2) Crockett, et al -v- Verizon Wireless, et al) (rcs,
10/06/2006 42 Memorandum in Opposition 67Response of the United States to Hepting
Plaintiffs' Administrative Motion for Scheduling Order filed byUnited States,
Keith B. Alexander, George W. Bush, National Security Agency, United States
of America, United States Of America. (Coppolino, Anthony) (Filed on
10/6/2006) Modified on 2/12/2007 (gsa, COURT STAFF). (Entered:
10/06/2006)
REPLY to Response to Motion AT&T's Response to Hepting Plaintiffs'
Administrative Motion for Scheduling Order (Dkt. 39) filed byAT&T Corp.,
AT&T, Inc., AT&T Corp., AT&T, Inc., AT&T Corp., AT&T Corp., AT&T
Corp., AT&T Inc., AT&T Corp., AT&T, Inc., AT&T Corp., AT&T Inc., AT&T,
Inc., AT&T Corp., AT&T Corp.(a New York corporation), AT&T Inc.(a
Delaware corporation). (Attachments: # 1 Exhibit A, B and C)(Sorensen, Jacob)
(Filed on 10/6/2006) Modified on 10/10/2006 (ewn, COURT STAFF). (Entered:
10/06/2006)
10/06/2006 44 Memorandum in Opposition re 39 MOTION Scheduling Order AT&Ts Response
to Hepting Plaintiffs' Administrative Motion for Scheduling Order (Dkt. 39) filed
byAT&T Corp., AT&T, Inc., AT&T Corp., AT&T, Inc., AT&T Corp., AT&T
Corp., AT&T Corp., AT&T Inc., AT&T Corp., AT&T, Inc., AT&T Corp.,
AT&T Inc., AT&T, Inc., AT&T Corp., AT&T Corp.(a New York corporation),
- ER 403 -
AT&T Inc.(a Delaware corporation). (Attachments: # 1 Exhibit A, B, C)
10/06/2006 45 CERTIFICATE OF SERVICE by AT&T Corp., AT&T, Inc., AT&T Corp.,
AT&T, Inc., AT&T Corp., AT&T Corp., AT&T Corp., AT&T Inc., AT&T
Corp., AT&T, Inc., AT&T Corp., AT&T Inc., AT&T, Inc., AT&T Corp., AT&T
Corp.(a New York corporation), AT&T Inc.(a Delaware corporation) re 44
Memorandum in Opposition, AT&T's Response to Hepting Plaintiffs'
Administrative Motion for Scheduling Order (Dkt. 39) (Ericson, Bruce) (Filed on
10/6/2006) (Entered: 10/06/2006)
10/10/2006 46 CLERK'S NOTICE Advising Counsel of Receipt of Cases from the Northern
District of Illinois and Western District of Kentucky. (Attachments: #(1)
Waxman -v- AT&T Corp.; #(2) Suchanek -v- Sprint Nextel Corp.) (rcs, COURT
10/10/2006 47 CLERK'S NOTICE Advising Counsel of Receipt of the Action Bready, et al -v-
Verizon Maryland, Inc. from the District of Maryland. (rcs, COURT STAFF)
(Filed on 10/10/2006) (Entered: 10/10/2006)
10/13/2006 48 CLERK'S NOTICE Advising Counsel of Receipt of Cases from the Southern
District of Florida, Western District of Michigan, and the Eastern District of
Pennsylvania. (Attachments: #(1) Fortnash -v- AT&T Corp.; #(2) Dubois, et al -
v- AT&T Corp., et al; #(3) Solomon -v- Verizon Communications, Inc.) (rcs,
10/16/2006 49 ORDER by Chief Judge Walker setting initial case management conference for
November 14, 2006, at 2:30pm (vrwlc2, COURT STAFF) (Filed on
10/16/2006). (Entered: 10/16/2006)
10/16/2006 Set Deadlines/Hearings: Case Management Statement due by 11/7/2006. Initial
Case Management Conference set for 11/14/2006 02:30 PM. Location:
Courtroom no. 6, 17th floor, 450 Golden Gate Ave., San Francisco, California.
(cgd, COURT STAFF) (Filed on 10/16/2006) (Entered: 10/16/2006)
10/16/2006 Set Deadlines/Hearings: Initial Case Management Conference set for 11/14/2006
02:30 PM. (gsa, COURT STAFF) (Filed on 10/16/2006) (Entered: 10/17/2006)
10/20/2006 50 NOTICE of Voluntary Dismissal of McLeod USA Telecommunications
Seervices, Inc. by Travis Cross (Attachments: # 1 Proposed Order Notice of
Dismissal of McLeod USA Telecommunications Services, Inc.)(Sipes, W.)
(Filed on 10/20/2006) (Entered: 10/20/2006)
10/25/2006 51 Mail Returned as Undeliverable. Mail sent to John Beisner. (gsa, COURT
10/31/2006 52 CLERK'S NOTICE : YOU ARE NOTIFIED THAT the Initial Case
Management Conference currently scheduled for November 14, 2006 has been
continued to Friday, November 17, 2006 at 10:30 a.m. and shall follow the
conditions set forth in the court's October 16, 2006 order (Doc #49). Please
report to Courtroom #6, on the 17th floor at 450 Golden Gate Avenue, San
Francisco, California. Case Management Conference set for 11/17/2006 10:30
AM. (cgd, COURT STAFF) (Filed on 10/31/2006) (Entered: 10/31/2006)
10/31/2006 53 Mail Returned as Undeliverable. Mail sent to Donald A. Statland (order filed
- ER 404 -
10/16/06). (far, COURT STAFF) (Filed on 10/31/2006) (Entered: 11/01/2006)
11/03/2006 54 MOTION to Substitute Attorney filed by Charter Communications, LLC.
(Burke, Thomas) (Filed on 11/3/2006) (Entered: 11/03/2006)
11/03/2006 55 First MOTION to Substitute Attorney filed by Bright House Networks, LLC.
11/03/2006 56 Second MOTION to Substitute Attorney filed by Bright House Networks, LLC.
11/07/2006 57 Letter from Jon B. Eisenberg Re: Potential Tag-Along Action Al-Haramain
Islamic Foundation, Inc. v. Bush, No. CV-06-274-KI (District of Oregon).
(Eisenberg, Jon) (Filed on 11/7/2006) (Entered: 11/07/2006)
11/07/2006 58 CASE MANAGEMENT STATEMENT PLAINTIFFS' JOINT AND AGREED
ORGANIZATION PLAN filed by Tash Hepting. (Attachments: # 1 Attachment
A# 2 Attachment B# 3 Attachment B, Ex. A# 4 Attachment B, Ex. B# 5
Attachment B, Ex. C# 6 Attachment B, Ex. D# 7 Attachment B, Ex. E# 8
Attachment B, Ex. F# 9 Attachment B, Ex. G Part 1# 10 Attachment B, Ex. G
Part 2# 11 Attachment B, Ex. H# 12 Attachment B, Ex. I# 13 Attachment B, Ex.
J# 14 Attachment B, Ex. K# 15 Attachment B, Ex. L# 16 Attachment B, Ex. M)
(Scarlett, Shana) (Filed on 11/7/2006) (Entered: 11/07/2006)
11/07/2006 59 MOTION to Substitute Attorney filed by TDS Communications Solutions, Inc..
(Wadia, Cyrus) (Filed on 11/7/2006) (Entered: 11/07/2006)
11/07/2006 60 CERTIFICATE OF SERVICE by TDS Communications Solutions, Inc. re 59
MOTION to Substitute Attorney (Wadia, Cyrus) (Filed on 11/7/2006) (Entered:
11/07/2006)
11/07/2006 61 JOINT CASE MANAGEMENT STATEMENT filed by AT&T
Communications, AT&T Teleholdings, Cingular Wireless Corporation, Cingular
Wireless LLC, Illinois Bell, Indiana Bell, New Cingular Wireless Services, Inc.,
Pac Bell Telephone Co., SBC Communications, AT&T Inc., AT&T
Communications of California, AT&T Corp., AT&T Operations Inc., SBC Long
Distance, LLC(a Delaware limited liability company doing business as AT&T
Long Distance). (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C)
(Axelbaum, Marc) (Filed on 11/7/2006) (Entered: 11/07/2006)
CERTIFICATE OF SERVICE by AT&T Communications, AT&T
Teleholdings, Cingular Wireless Corporation, Cingular Wireless LLC, Illinois
Bell, Indiana Bell, Pac Bell Telephone Co., SBC Communications, New
Cingular Wireless Services, Inc., AT&T Communications of California, AT&T
Corp., AT&T Operations Inc., AT&T Inc.(a Delaware corporation), SBC Long
Distance, LLC(a Delaware limited liability company doing business as AT&T
Long Distance) re 61 Case Management Statement (Joint), Case Management
Statement (Joint), Case Management Statement (Joint) (Ericson, Bruce) (Filed
on 11/8/2006) Modified on 11/9/2006 (ewn, COURT STAFF). (Entered:
11/08/2006)
11/08/2006 63 CERTIFICATE OF SERVICE by AT&T Corp., AT&T Teleholdings, Cingular
Wireless Corporation, Cingular Wireless LLC, Illinois Bell, Indiana Bell, Pac
Bell Telephone Co., SBC Communications, AT&T Communications, Inc.,
- ER 405 -
AT&T Inc., AT&T Operations, Inc., New Cingular Wireless Services, Inc.,
AT&T Communications of California, SBC Long Distance, LLC(a Delaware
limited liability company doing business as AT&T Long Distance) re 61 Case
Management Statement (Joint), Case Management Statement (Joint), Case
Management Statement (Joint) (Ericson, Bruce) (Filed on 11/8/2006) (Entered:
11/08/2006)
11/08/2006 64 CLERK'S NOTICE Advising Counsel of Receipt of the Case D. Clive Hardy -v-
AT&T Corp. from the Eastern District of Louisiana. (rcs, COURT STAFF)
(Filed on 11/8/2006) (Entered: 11/08/2006)
11/08/2006 65 Proposed Order re 59 MOTION to Substitute Attorney by TDS Communications
Solutions, Inc.. (Black, E.) (Filed on 11/8/2006) (Entered: 11/08/2006)
Proposed Order, 59 MOTION to Substitute Attorney (Black, E.) (Filed on
11/8/2006) (Entered: 11/08/2006)
11/08/2006 67 MOTION to Stay MDL Proceedings filed by Keith B. Alexander, George W.
Bush, National Security Agency, United States Of America. Motion Hearing set
for 1/11/2007 02:00 PM in Courtroom 6, 17th Floor, San Francisco.
(Attachments: # 1 Exhibit A (Order granting interlocutory appeal in Hepting v.
AT&T (Nov. 7, 2006)))(Tannenbaum, Andrew) (Filed on 11/8/2006) (Entered:
11/08/2006)
11/09/2006 68 ERRATA re 67 MOTION to Stay MDL Proceedings by Keith B. Alexander,
George W. Bush, National Security Agency, United States Of America.
11/09/2006 69 CERTIFICATE OF SERVICE by Keith B. Alexander, George W. Bush,
National Security Agency, United States Of America re 67 MOTION to Stay
MDL Proceedings (Tannenbaum, Andrew) (Filed on 11/9/2006) (Entered:
11/09/2006)
11/10/2006 70 NOTICE of Appearance by John G. Kester (Kester, John) (Filed on 11/10/2006)
(Entered: 11/10/2006)
11/10/2006 71 CERTIFICATE OF SERVICE by Sprint Communications Company L.P., Sprint
Spectrum L.P., Sprint Nextel Corporation re 70 Notice of Appearance (Kester,
John) (Filed on 11/10/2006) (Entered: 11/10/2006)
11/16/2006 72 ORDER granting application of Adam S. Caldwell to appear and participate as
counsel pro hac vice representing Charter Communications Inc. Signed by Chief
Judge Vaughn R Walker on 11/15/2006. (cgd, COURT STAFF) (Filed on
11/16/2006) (Entered: 11/16/2006)
11/16/2006 73 ORDER granting application of Elizabeth A. Drogula to appear and participate
as counsel pro hac vice representing Charter Communications Inc. Signed by
Chief Judge Vaughn R Walker on 11/15/2006. (cgd, COURT STAFF) (Filed on
11/16/2006) (Entered: 11/16/2006)
11/16/2006 74 ORDER granting application of John D. Seiver to appear and participate as
counsel pro hac vice representing Charter Communications Inc. Signed by Chief
Judge Vaughn R Walker on 11/15/2006. (cgd, COURT STAFF) (Filed on
11/16/2006) (Entered: 11/16/2006)
- ER 406 -
11/17/2006 76 Minute Entry: Initial Case Management Conference held on 11/17/2006 before
Chief Judge Vaughn R Walker and set the following schedule: All parties to
show cause in writing why the Hepting order should not apply to all cases and
claims to which the government asserts the state secrets privilege: 12/14/2006.
Hearing on motions to remand brought by plaintiffs in Riordan (06-3574),
Campbell (06-3596), Chulsky (06-2530) and Bready (06-6313): 12/21/2006 at
2:00 PM. Hearing on media intervenors' motions to unseal documents in Hepting
(06-0672): 12/21/2006 at 2:00 PM. Master Complaints to be served and filed by
Plaintiffs: 1/8/2007. Hearing on the government's motion for a stay pending
disposition of interlocutory appeal in Hepting: 2/1/2007 at 2:00 PM. Hearing on
the court's Order to Show Cause: 2/1/2007 at 2:00 PM. (Court Reporter Connie
Kuhl.) (cgd, COURT STAFF) (Date Filed: 11/17/2006) (Entered: 11/21/2006)
11/17/2006 Set/Reset Hearings: Motions Hearing set for 12/21/2006 02:00 PM. Order to
Show Cause Hearing set for 2/1/2007 02:00 PM. in Courtroom 6, 17th Floor,
San Francisco. (cgd, COURT STAFF) (Filed on 11/17/2006) (Entered:
11/21/2006)
11/17/2006 78 AMENDED Minute Entry: Initial Case Management Conference held on
11/17/2006 before Chief Judge Vaughn R Walker. (Court Reporter Connie
Kuhl.) (cgd, COURT STAFF) (Date Filed: 11/17/2006) (Entered: 11/22/2006)
11/20/2006 75 Mail Returned as Undeliverable. Mail sent to Daniel J. Becka. (gsa, COURT
11/21/2006) (Entered: 11/22/2006)
11/22/2006 79 ORDER on case management conference. Signed by Chief Judge Walker on
11/22/06. (vrwlc2, COURT STAFF) (Filed on 11/22/2006) (Entered:
11/22/2006)
11/27/2006 81 Conditional Transfer ORDER (CTO-5). Signed by Jeffery N. Luthi, Clerk of the
Panel. (gsa, COURT STAFF) (Filed on 11/27/2006) (Entered: 11/30/2006)
11/29/2006 80 NOTICE of Voluntary Dismissal of Sprint Nextel Corporation from Electron
Tubes v. Verizon by Anthony Bartelemy (Cohn, Cindy) (Filed on 11/29/2006)
(Entered: 11/29/2006)
12/01/2006 82 STIPULATION Re: Briefing Schedule for Motion to Stay [Dkt. 67-69]; and
[Proposed] Order by American Telephone and Telegraph Company, AT&T
Teleholdings, Inc., Cingular Wireless, LLC, AT&T Communications, AT&T
Teleholdings, Cingular Wireless Corporation, Cingular Wireless LLC, New
Cingular Wireless Services, Inc., Pac Bell Telephone Co., SBC
Communications, American Telephone & Telegraph Co., AT&T
Communications, Inc., New Cingular Wireless Services, Inc., Pacific Bell
Telephone Company, SBC Long Distance, LLC, AT&T Communications of
California, AT&T Corp., AT&T, Inc., AT&T Inc., AT&T Operations Inc., New
Cingular Wireless Services, Inc., SBC Long Distance, LLC(a Delaware limited
liability company doing business as AT&T Long Distance), Pacific Bell
Telephone Company(a California corporation doing business as AT&T
California), AT&T Communications of California, Inc.(a California
corporation). (Ericson, Bruce) (Filed on 12/1/2006) (Entered: 12/01/2006)
- ER 407 -
12/01/2006 83 CERTIFICATE OF SERVICE by American Telephone and Telegraph
Company, AT&T Teleholdings, Inc., Cingular Wireless, LLC, AT&T
Communications, AT&T Teleholdings, Cingular Wireless Corporation, New
Cingular Wireless Services, Inc., Pac Bell Telephone Co., SBC
Communications, American Telephone & Telegraph Co., AT&T
Communications, Inc., AT&T Operations, Inc., New Cingular Wireless Services,
Inc., SBC Long Distance, LLC, AT&T Communications of California, AT&T
Corp., AT&T, Inc., AT&T Inc., New Cingular Wireless Services, Inc., SBC
Long Distance, LLC(a Delaware limited liability company doing business as
AT&T Long Distance), Pacific Bell Telephone Company(a California
corporation doing business as AT&T California), AT&T Communications of
California, Inc.(a California corporation) re 82 Stipulation,,, Re: Briefing
Schedule for Motion to Stay [Dkt. 67-69]; and [Proposed] Order (Ericson,
12/04/2006 84 STATEMENT OF RECENT DECISION pursuant to Civil Local Rule 7-3.d in
Support of Defendants' Opposition to Plaintiffs' Motion for Remand filed
byAT&T Communications of California, AT&T Corp., AT&T Inc..
(Attachments: # 1 Exhibit 1# 2 Exhibit 2)(Ericson, Bruce) (Filed on 12/4/2006)
(Entered: 12/04/2006)
12/14/2006 85 STIPULATION of Dismissal re 3:06-cv-06222-VRW by TDS Communications
Solutions, Inc.. (Attachments: # 1 Proposed Order)(Wadia, Cyrus) (Filed on
12/14/2006) (Entered: 12/14/2006)
12/14/2006 86 STIPULATION of Dismissal re 3:06-cv-06224-VRW by TDS Communications
Solutions, Inc.. (Attachments: # 1 Proposed Order)(Wadia, Cyrus) (Filed on
12/14/2006) (Entered: 12/14/2006)
Stipulation of Dismissal, 86 Stipulation of Dismissal (Black, E.) (Filed on
12/14/2006) (Entered: 12/14/2006)
12/15/2006 88 STATUS REPORT re Plaintiffs' List of Interim Class Counsel for Each
Defendant Category by Tash Hepting. (Cohn, Cindy) (Filed on 12/15/2006)
(Entered: 12/15/2006)
12/18/2006 89 STIPULATION AND ORDER (Relates to C06-6222 Cross v AT&T). Pursuant
to Rule 41(a)(1) of the FRCP, the parties stipulate to dismissal as to only of
defendant TDS Communications Solutions Inc, without prejudice, each party
will bear its own costs and attorneys' fees. Signed by Chief Judge Vaughn R
12/18/2006)
12/18/2006 90 STIPULATION AND ORDER (Relates to C06-6224 Cross v AT&T). Pursuant
to Rule 41(a)(1), the parties stipulate to dismissal without prejudice as to only
defendant TDS Communications Solutions Inc, each party will bear its own
attorneys' fees. Signed by Chief Judge Vaughn R Walker on 12/18/2006. (cgd,
12/18/2006 91 STATEMENT OF RECENT DECISION pursuant to Civil Local Rule 7-3.d
Plaintiffs' Joint Statement of Recent Decisions in Support of Motions for Remand
filed byDennis P. Riordan, Tom Campbell. (Attachments: # 1 Exhibit 1# 2
Exhibit 2)(Pulgram, Laurence) (Filed on 12/18/2006) (Entered: 12/18/2006)
- ER 408 -
12/19/2006 92 ORDER by Chief Judge Vaughn R Walker granting 28 Application for
Admission Pro Hac Vice of BENJAMIN C. MIZER. (cgd, COURT STAFF)
(Filed on 12/19/2006) (Entered: 12/19/2006)
12/19/2006 93 ORDER by Chief Judge Vaughn R Walker granting Application for Admission
Pro Hac Vice of LEONDRA R. KRUGER. (cgd, COURT STAFF) (Filed on
12/19/2006) (Entered: 12/19/2006)
12/19/2006 94 MOTION for Administrative Relief filed by Christopher Bready. Motion
(Attachments: # 1 Proposed Order)(Whitaker, Joshua) (Filed on 12/19/2006)
(Entered: 12/19/2006)
12/19/2006 95 CERTIFICATE OF SERVICE by Christopher Bready re 94 MOTION for
Administrative Relief (Whitaker, Joshua) (Filed on 12/19/2006) (Entered:
12/19/2006)
12/19/2006 97 Transfer Order signed by William Terrell Hodges, Chairman, Judicial Panel on
Multidistrict Litigation. (gsa, COURT STAFF) (Filed on 12/19/2006) (Entered:
12/21/2006)
12/20/2006 96 Proposed Order in the Hepting action by Keith B. Alexander, George W. Bush,
National Security Agency, United States of America, United States Of America.
12/21/2006 108 Minute Entry: Motions Hearing held on 12/21/2006 before Chief Judge Vaughn
R Walker (Date Filed: 12/21/2006). (Court Reporter Connie Kuhl.) (cgd,
COURT STAFF) (Date Filed: 12/21/2006) (Entered: 12/29/2006)
12/22/2006 98 RESPONSE in Support re 67 MOTION to Stay MDL Proceedings filed bySprint
Nextel Corporation. (Kester, John) (Filed on 12/22/2006) (Entered: 12/22/2006)
12/22/2006 99 RESPONSE in Support re 67 MOTION to Stay MDL Proceedings filed
byComcast Telecommunications, Inc.. (Soriano, Christopher) (Filed on
12/22/2006) (Entered: 12/22/2006)
12/22/2006 100 MOTION for Joinder in United States' Motion to Stay Proceedings Pending
Disposition of Interlocutory Appeals In Hepting v. AT&T Corp.; Memorandum
of Law filed by AT&T Corp.. Motion Hearing set for 2/9/2007 02:00 PM in
Courtroom 6, 17th Floor, San Francisco. (Attachments: # 1 Exhibit Exhibits A
and B)(Ericson, Bruce) (Filed on 12/22/2006) (Entered: 12/22/2006)
12/22/2006 101 Joinder re 67 MOTION to Stay MDL Proceedings by Verizon Communications
Inc, Verizon Global Networks, Inc., Verizon Northwest, Inc., MCI
Communications Services, Inc., Verizon Wireless Services, Inc., Verizon
Maryland, Inc., Cellco Partnership, MCI, LLC. (Boynton, Brian) (Filed on
12/22/2006) (Entered: 12/22/2006)
12/22/2006 102 Memorandum in Opposition re 94 MOTION for Administrative Relief filed
byVerizon Maryland, Inc.. (Attachments: # 1 Proposed Order)(Boynton, Brian)
(Filed on 12/22/2006) (Entered: 12/22/2006)
12/22/2006 103 ORDER by Judge Vaughn R Walker granting 54 Motion to Substitute Attorney.
Attorney Richard Radke, Jr terminated. James P. Walsh substituting. (cgd,
- ER 409 -
12/22/2006 104 Proposed Order Resetting Deadlines by All Plaintiffs. (Cohn, Cindy) (Filed on
12/22/2006) (Entered: 12/22/2006)
Attorney David K. Herzog terminated. Thomas Burke substituting. (cgd,
Added attorney Thomas R. Burke for Bright House Networks, LLC. (cgd,
12/22/2006 107 Letter to Chief Judge Vaughn Walker from Shayana Kadidal, Esq. dated
12/21/2006 regarding a case that has not yet arrived in San Francisco - CCR v.
Bush (06-383) (SDNY), but that has recently transferred to this Court by the
Judicial Panel on Multidistrict Litigation pursuant to an order dated 12/15/2006.
Lead counsel and co-counsel will be absent until 1/19/2006. Counsel requests
that any inquires be directed to William Goodman, Esq. at 212-614-6427 until
lead and co-counsel returns. (gsa, COURT STAFF) (Filed on 12/22/2006)
(Entered: 12/27/2006)
01/05/2007 109 NOTICE by Charter Communications, LLC of Change of Affiliation of Counsel
Relating to Case No. 5:06-CV-0085 (Burke, Thomas) (Filed on 1/5/2007)
(Entered: 01/05/2007)
01/05/2007 110 NOTICE by Bright House Networks, LLC of Change of Affiliation of Counsel
Relating to Case No. 3:06-CV-06224VRW (Burke, Thomas) (Filed on 1/5/2007)
(Entered: 01/05/2007)
01/05/2007 111 NOTICE by Bright House Networks, LLC of Change of Affiliation of Counsel
Relating to Case No. 3:06-CV-06222VRW (Burke, Thomas) (Filed on 1/5/2007)
(Entered: 01/05/2007)
01/05/2007 112 ORDER re 104 filed by All Plaintiffs. Upon the oral stipulation of counsel and
agreement of the Court reached during the hearing in this case on 12/21/2006,
the Court sets the following schedule, superseding the one contained in its
pretrial order, docket #79. Master Complaints to be served and filed by
Plaintiffs: 1/16/2007. Opposition to Motion for Stay filed and served: 1/17/2007.
Reply to Motion for Stay: 1/30/2007. All parties to Show Cause in writing why
the Hepting order should not apply to all cases and claims to which the
government asserts the state secrets privilege: 2/1/2007. Hearing on Stay Motion
and on the Court's OSC: 2/9/2007 at 2:00 PM. Signed by Chief Judge Vaughn R
01/05/2007)
01/09/2007 113 Letter from Jon Eisenberg to Judge Walker re: pending motions and discovery
conference. (Eisenberg, Jon) (Filed on 1/9/2007) (Entered: 01/09/2007)
01/10/2007 114 CLERK'S NOTICE Advising Counsel of Receipt of the Case Al Haramain
Islamic Foundation, Inc., et al -v- George W. Bush, et al from the District of
Oregon. (rcs, COURT STAFF) (Filed on 1/10/2007) (Entered: 01/10/2007)
01/11/2007 115 NOTICE of Appearance by Sam Jonathan Alton (Alton, Sam) (Filed on
1/11/2007) (Entered: 01/11/2007)
- ER 410 -
1/11/2007) (Entered: 01/12/2007)
01/12/2007 116 STIPULATION of Dismissal filed by Bright House Networks, LLC. (Caldwell,
Adam) (Filed on 1/12/2007) (Entered: 01/12/2007)
01/12/2007 117 STIPULATION of Dismissal related to case number 3:06-cv-06224 filed by
Bright House Networks, LLC. (Caldwell, Adam) (Filed on 1/12/2007) (Entered:
01/12/2007)
01/12/2007 118 STIPULATION of Dismissal filed by Charter Communications, LLC. (Caldwell,
Adam) (Filed on 1/12/2007) (Entered: 01/12/2007)
01/13/2007 120 NOTICE by United States Of America of Lodging (Tannenbaum, Andrew)
(Filed on 1/13/2007) (Entered: 01/13/2007)
01/16/2007 121 AMENDED COMPLAINT MASTER COMPLAINT AGAINST CINGULAR
WIRELESS against AT&T Mobility LLC, Cingular Wireless Corporation,
Cingular Wireless LLC, New Cingular Wireless Services, Inc.. Filed byBrian
Bradley, Cathy Bruning, Steven Bruning, Kim Coco Iwamoto, Anakalia Kaluna,
Steven Lebow, Alan Toly Sapoznik, Sam Goldstein Insurance Agency, Inc.,
Heather Derosier, Paul Robilotti, Louis Black, Richard A. Grigg, James C.
Harrington, Michael Kentor, The Austin Chronicle. (George, R.) (Filed on
1/16/2007) (Entered: 01/16/2007)
01/16/2007 122 NOTICE by Benson B. Roe(individually and on behalf of all others similarly
situated) NOTICE OF WITHDRAWAL OF COUNSEL (Finberg, James) (Filed
on 1/16/2007) (Entered: 01/16/2007)
01/16/2007 123 AMENDED COMPLAINT MASTER CONSOLIDATED COMPLAINT against
T-Mobile USA, Inc., Comcast Telecommunications, Inc., McLeodusa
Telecommunications Services, Inc., Transworld Network Corp.. Filed byTravis
Cross, Sam Goldstein, Libertarian party of Indiana, Carolyn W. Rader, Sam
Goldstein Insurance Agency, Inc., Sean Shepherd, Christopher Yowtz, Rebecca
Yowtz. (Scarlett, Shana) (Filed on 1/16/2007) (Entered: 01/16/2007)
01/16/2007 124 AMENDED COMPLAINT Consolidated against Sprint Communications
Company L.P., Sprint Nextel Corporation. Filed byRichard D. Suchanek, III.
(Mason, Gary) (Filed on 1/16/2007) (Entered: 01/16/2007)
01/16/2007 125 AMENDED COMPLAINT MASTER CONSOLIDATED COMPLAINT
AGAINST MCI DEFENDANTS AND VERIZON DEFENDANTS against Verizon
Northwest, Inc.(an active Washington Corporation), Verizon Communications,
Inc.(an active Delaware corporation), Verizon Communications Inc, Verizon
Communications, Inc., Verizon Wireless, LLC, Verizon, Verizon Northwest,
Inc., MCI Communications Services, Inc., Verizon Wireless Services, Inc.,
Verizon Wireless LLC, Verizon Maryland, Inc., MCI, LLC, Verizon
Communications, Inc.(a corporation), Verizon Communications, Inc., MCI,
LLC, Verizon Communications, Inc., Verizon Communications, Inc.. Filed
byElaine Spielfogel-Landis. (Himmelstein, Barry) (Filed on 1/16/2007)
(Entered: 01/16/2007)
01/16/2007 126 AMENDED COMPLAINT MASTER CONSOLIDATED COMPLAINT
AGAINST BELLSOUTH DEFENDANTS against Bellsouth Communication
Systems, LLC, BellSouth Telecommunications, Inc., BellSouth Communications
- ER 411 -
Systems, LLC, BellSouth Corp., BellSouth Telecomminications, Inc.. Filed
byLinda Gettier, Melissa Scroggins, James Nurkiewicz, Carolyn R. Hensley,
Douglas S. Hensley, Heather Derosier, Lisa Lockwood, Joe McMurray, Cathy
Bruning, Steven Bruning, Steven Lebow, Clyde Michael Morgan, Ilene Pruett,
Anthony Bartelemy, Stephen M. Kampmann, Tina Herron, Brandy Sergi, John
Clark, Thomas Michael Fain, John Fitzpatrick. (Schwarz, Steven) (Filed on
1/16/2007) (Entered: 01/16/2007)
01/17/2007 127 NOTICE by United States Of America of Attorney General's Letter to Congress
(Attachments: # 1 Letter from the Attorney General to Senators Leahy and
Specter (Jan. 17, 2007))(Tannenbaum, Andrew) (Filed on 1/17/2007) (Entered:
01/17/2007)
01/17/2007 128 Memorandum in Opposition to Gov't Motion to Stay filed byTash Hepting.
01/17/2007 129 AFFIDAVIT in Opposition to Gov't Motion to Stay filed byTash Hepting.
(Attachments: # 1 Exhibit Ex. 1 - Salon Article# 2 Exhibit Ex 2 - CNET article)
01/18/2007 130 ORDER denying motion to remand brought by plaintiffs in Riordan (06-3574)
and Campbell (06-3596). Signed by Chief Judge Walker on 1/18/07. (vrwlc2,
01/22/2007 131 NOTICE by Keith B. Alexander, Office of Foreign Assets Control, Robert W.
Werner, Federal Bureau of Investigation, George W. Bush, National Security
Agency Regarding Transcript Orders in Case No. C-07-0109-VRW
01/24/2007 132 NOTICE by Verizon Communications Inc, Verizon Global Networks, Inc.,
Verizon Northwest, Inc., MCI Communications Services, Inc., Verizon
Maryland, Inc., Cellco Partnership, MCI, LLC of Attorney No Longer Associated
with this Case (Boynton, Brian) (Filed on 1/24/2007) (Entered: 01/24/2007)
01/25/2007 133 CLERK'S NOTICE Advising Counsel of Receipt of the Case Lebow, et al -v-
BellSouth Corp., et al from the Northern District of Georgia. (rcs, COURT
01/25/2007 134 NOTICE of Change of Address by Justin Isreal Woods Notice of Change of
Address by Sidney Bach (Woods, Justin) (Filed on 1/25/2007) (Entered:
01/25/2007)
01/29/2007 135 NOTICE of Appearance by Nicholas A Migliaccio on behalf of Richard D.
Suchanek, III (Migliaccio, Nicholas) (Filed on 1/29/2007) (Entered: 01/29/2007)
01/29/2007 136 STIPULATION to Extend Deadline for Replies for Motion to Stay by United
States, George W. Bush(President of the United States), National Security
Agency, George W. Bush, National Security Agency, United States Of America,
United States of America, United States of America. (Haas, Alexander) (Filed on
1/29/2007) (Entered: 01/29/2007)
01/29/2007 137 NOTICE of Appearance by R. James George, Jr for Gary L. Lewis (George, R.)
(Filed on 1/29/2007) (Entered: 01/29/2007)
01/30/2007 138 STIPULATION AND ORDER AS MODIFIED. The Government and the Major
Carriers shall e-file their replies on the motion to stay no later than 2:00 p.m.
- ER 412 -
PST (5:00 p.m. EST) on 2/1/2007. The Plaintiffs shall e-file their single sur-
reply, limited to responding to arguments, if any, in the replies that are based on
the Notice of the Foreign Intelligence Surveillance Act Orders, which was filed
on 1/17/2007 no later than 2:00 p.m. PST (5:00 p.m. EST) on 2/5/2007. Signed
by Judge Vaughn R Walker on 1/30/2007. (cgd, COURT STAFF) (Filed on
1/30/2007) (Entered: 01/30/2007)
01/30/2007 139 STIPULATION AND [PROPOSED] ORDER DEFERRING RESPONSES TO
CONSOLIDATED COMPLAINTS by AT&T Corp.. (Axelbaum, Marc) (Filed on
1/30/2007) (Entered: 01/30/2007)
01/31/2007 140 NOTICE of Substitution of Counsel by Marc H. Axelbaum for the BellSouth
Defendants (Axelbaum, Marc) (Filed on 1/31/2007) (Entered: 01/31/2007)
02/01/2007 141 Reply to Opposition 67in Support of Motion for Stay filed bySprint Nextel
Corporation. (Attachments: # 1)(Kester, John) (Filed on 2/1/2007) Modified on
2/12/2007 (gsa, COURT STAFF). (Entered: 02/01/2007)
02/01/2007 142 Reply Memorandum re 100 MOTION for Joinder in United States' Motion to
Stay Proceedings Pending Disposition of Interlocutory Appeals In Hepting v.
AT&T Corp.; Memorandum of Law filed byAT&T Corp.. (Axelbaum, Marc)
(Filed on 2/1/2007) (Entered: 02/01/2007)
02/01/2007 143 STIPULATION to Stay Cases Against Cingular by AT&T Mobility
Corporation, Cingular Wireless Corporation, Cingular Wireless LLC, New
Cingular Wireless Services, Inc., AT&T Mobility LLC. (Axelbaum, Marc)
(Filed on 2/1/2007) (Entered: 02/01/2007)
02/01/2007 144 Declaration of Bruce A. Ericson in Support of 143 Stipulation to Stay Cases
Against Cingular filed byCingular Wireless Corporation, Cingular Wireless
LLC, AT&T Mobility LLC, AT&T Mobility Corporation, New Cingular
Wireless Services, Inc.. (Related document(s)143) (Axelbaum, Marc) (Filed on
2/1/2007) (Entered: 02/01/2007)
02/01/2007 145 Reply Memorandum 67in Support of United States' Motion for a Stay Pending
Disposition of Interlocutory Appeal in Hepting v. AT&T filed byVerizon
Communications Inc, Verizon Global Networks, Inc., Verizon Northwest, Inc.,
MCI Communications Services, Inc., Verizon Wireless Services, Inc., Verizon
Wireless LLC, Verizon Maryland, Inc., Cellco Partnership, MCI, LLC.
(Boynton, Brian) (Filed on 2/1/2007) Modified on 2/12/2007 (gsa, COURT
02/01/2007 146 Joinder re 141 Reply to Opposition Joinder of Cingular and BellSouth
Defendants in Sprint's Reply in Support of Motion for Stay by Bellsouth
Communication Systems, LLC, Cingular Wireless Corporation, Cingular
Wireless LLC, New Cingular Wireless Services, Inc., BellSouth Corp.,
BellSouth Telecomminications, Inc.. (Axelbaum, Marc) (Filed on 2/1/2007)
(Entered: 02/01/2007)
02/01/2007 147 Reply to Opposition 67Reply in Support of United States' Motion for a Stay
Pending Appeal filed byUnited States, Keith B. Alexander, Office of Foreign
Assets Control, George W. Bush, National Security Agency, United States Of
America. (Coppolino, Anthony) (Filed on 2/1/2007) Modified on 2/12/2007
(gsa, COURT STAFF). (Entered: 02/01/2007)
- ER 413 -
02/01/2007 148 RESPONSE TO 112 ORDER TO SHOW CAUSE by Pacific Bell Telephone
Co., SBC Long Distance LLC, AT&T Communications, AT&T Teleholdings,
Illinois Bell, Indiana Bell, SBC Communications, AT&T Operations, Inc.,
AT&T Communications of California, AT&T Inc.. (Axelbaum, Marc) (Filed on
2/1/2007) Modified on 2/12/2007 (gsa, COURT STAFF). (Entered: 02/01/2007)
02/01/2007 149 RESPONSE TO 112ORDER TO SHOW CAUSE by Sprint Nextel Corporation.
(Kester, John) (Filed on 2/1/2007) Modified on 2/12/2007 (gsa, COURT
02/01/2007 150 Response to 112 Order to Show Cause byComcast Telecommunications, Inc..
(Soriano, Christopher) (Filed on 2/1/2007) Modified on 2/12/2007 (gsa, COURT
02/01/2007 151 RESPONSE TO 112ORDER TO SHOW CAUSE by Verizon Communications
Inc, Verizon Global Networks, Inc., Verizon Northwest, Inc., MCI
Communications Services, Inc., Verizon Wireless Services, Inc., Verizon
Wireless LLC, Verizon Maryland, Inc., Cellco Partnership, MCI, LLC.
(Boynton, Brian) (Filed on 2/1/2007) Modified on 2/12/2007 (gsa, COURT
02/01/2007 152 STIPULATION AND ORDER DEFERRING RESPONSES TO
CONSOLIDATED COMPLAINTS. Pursuant to the foregoing Stipulation, and
good cause appearing, the Court orders the following: 1. At the hearing on the
United States' motion for stay, currently scheduled for 2/9/2007, the Court will
address when Defendants must respond to the complaints filed against them. 2.
No Defendants need respond to any complaints until the Court sets a date for
such a response. Signed by Chief Judge Vaughn R Walker on 2/1/2007. (cgd,
02/01/2007 153 RESPONSE TO 112ORDER TO SHOW CAUSE by BellSouth
Communications Systems, LLC, BellSouth Telecommunications, Inc., Cingular
Wireless Corporation, Cingular Wireless LLC, AT&T Mobility LLC, AT&T
Mobility Corporation, BellSouth Corp., New Cingular Wireless Services, Inc..
(Axelbaum, Marc) (Filed on 2/1/2007) Modified on 2/12/2007 (gsa, COURT
02/01/2007 154 RESPONSE TO 112 ORDER TO SHOW CAUSE by United States Of America.
(Tannenbaum, Andrew) (Filed on 2/1/2007) Modified on 2/12/2007 (gsa,
COURT STAFF). (Entered: 02/01/2007)
02/01/2007 155 Response to Order to Show Cause 112 Order,,,, 79 Order CLASS PLAINTIFFS'
CONSOLIDATED RESPONSE TO ORDER TO SHOW CAUSE WHY RULINGS
ON HEPTING MOTIONS TO DISMISS SHOULD NOT APPLY byAll Plaintiffs.
02/01/2007 156 Declaration of BARRY HIMMELSTEIN in Support of 155 Response to Order
to Show Cause, AND REQUEST FOR JUDICIAL NOTICE filed byAll Plaintiffs.
(Attachments: # 1 Exhibit EXHIBITS P-Z)(Related document(s)155)
02/05/2007 157 RESPONSE in Support Surreply in Opposition to Motion to Stay filed byAll
Plaintiffs. (Cohn, Cindy) (Filed on 2/5/2007) (Entered: 02/05/2007)
02/07/2007 158 NOTICE of Voluntary Dismissal of McLeodUSA Telecommunications Services,
- ER 414 -
Inc. by All Plaintiffs (Attachments: # 1 Proposed Order)(Parrett, Vincent) (Filed
on 2/7/2007) (Entered: 02/07/2007)
02/07/2007 159 NOTICE of Voluntary Dismissal of T-Mobile USA, Inc. by All Plaintiffs
(Attachments: # 1 Proposed Order)(Parrett, Vincent) (Filed on 2/7/2007)
(Entered: 02/07/2007)
02/08/2007 160 STIPULATION and [Proposed] Order to Stay Cases Against Sprint by Sprint
Nextel Corporation. (Kester, John) (Filed on 2/8/2007) (Entered: 02/08/2007)
02/09/2007 161 Minute Entry: Order to Show Cause and Motion Hearing held on 2/9/2007
before Chief Judge Vaughn R Walker re 100 MOTION for Joinder in United
States' Motion to Stay Proceedings Pending Disposition of Interlocutory Appeals
In Hepting v. AT&T Corp.; Memorandum of Law filed by AT&T Corp.,, 67
MOTION to Stay MDL Proceedings filed by National Security Agency,, George
W. Bush,, United States Of America,, Keith B. Alexander. The Court heard
argument from counsel. The Court took the matter(s) under-submission. Court to
issue written ruling. (Court Reporter Connie Kuhl.) (cgk, COURT STAFF) (Date
Filed: 2/9/2007) (Entered: 02/12/2007)
02/14/2007 162 ORDER granting re 158 Voluntary Dismissal of McLeod USA
Telecommunications Services, Inc. filed by All Plaintiffs. Signed by Chief Judge
Vaughn R Walker on 2/14/2007. (cgk, COURT STAFF) (Filed on 2/14/2007)
(Entered: 02/14/2007)
02/14/2007 163 STIPULATION AND ORDER GRANTING TO STAY CASES AGAINST
SPRINT. Cases C06-6222, C06-6224, C06-6254, C06-6295, C07-0464 stayed.
Signed by Chief Judge Vaughn R Walker on 2/14/2007. (cgk, COURT STAFF)
(Filed on 2/14/2007) (Entered: 02/14/2007)
02/14/2007 164 ORDER Granting re 159 Voluntary Dismissal of T-Mobile USA, Inc. filed by
All Plaintiffs. Signed by Chief Judge Vaughn R Walker on 2/14/2007. (cgk,
02/16/2007 165 NOTICE by Keith B. Alexander, George W. Bush, National Security Agency,
United States of America, United States Of America of Decision by Judicial
Panel on Transfer of State Cases (Attachments: # 1 Exhibit Exh A -- JPML
021507 Transfer Order)(Haas, Alexander) (Filed on 2/16/2007) (Entered:
02/16/2007)
02/16/2007 166 NOTICE of Voluntary Dismissal by Electron Tubes, Inc. (Attachments: # 1
Proposed Order)(Parrett, Vincent) (Filed on 2/16/2007) (Entered: 02/16/2007)
02/16/2007 167 NOTICE by Carolyn Jewel, Erik Knutzen, Tash Hepting, Gregory Hicks
NOTICE OF CHANGE OF ATTORNEY AFFILIATION (Kathrein, Reed) (Filed
on 2/16/2007) (Entered: 02/16/2007)
02/16/2007 168 STIPULATION AND ORDER : Pursuant to the Stipulation of Dismissal filed
by the parties, and good cause appearing, Bright House Networks LLC is hereby
dismissed without prejudice from this action. Each party will bear its own costs
and attorneys' fees. Signed by Chief Judge Vaughn R Walker on February 16,
2007. (cgk, COURT STAFF) (Filed on 2/16/2007) (Entered: 02/16/2007)
02/16/2007 169 STIPULATION AND ORDER : Pursuant to Rule 41(a)(1) of the Federal Rules
of Civil Procedure, the parties stipulate to the dismissal of defendant Bright
- ER 415 -
House Networks, LLC without prejudice, in the action. Each party will bear its
own costs and attorney's fees. Signed by Chief Judge Vaughn R Walker on
2/16/2007. (cgk, COURT STAFF) (Filed on 2/16/2007) (Entered: 02/16/2007)
02/16/2007 170 STIPULATION AND ORDER : Pursuant to Rule 41(a)(1) of the Federal Rules
of Civil Procedure, the parties stipulate to the dismissal of Defendant Charter
Communications, LLC without prejudice in this action. Each party will bear its
own costs and attorney's fees. Signed by Chief Judge Vaughn R Walker on
2/16/2007. (cgk, COURT STAFF) (Filed on 2/16/2007) (Entered: 02/16/2007)
02/20/2007 171 ORDER granting in part and denying in part motions to intervene and unseal.
Doc ##133, 139, CV-06-672-VRW. Signed by Chief Judge Walker on
2/20/2007. (vrwlc2, COURT STAFF) (Filed on 2/20/2007) (Entered:
02/20/2007)
to stay. (vrwlc2, COURT STAFF) (Filed on 2/20/2007) (Entered: 02/20/2007)
02/21/2007 173 TRANSFER ORDER. Signed by William Terrell Hodges, Chairman,
Multidistrict Litigation on 2/21/2007. (gsa, COURT STAFF) (Filed on
2/21/2007) (Entered: 02/21/2007)
2/21/2007) (Entered: 02/21/2007)
02/22/2007 175 NOTICE by Keith B. Alexander, George W. Bush, National Security Agency,
United States of America, United States of America Notice of Filing of Public
Declaration of Lt. Gen. Keith B. Alexander (Coppolino, Anthony) (Filed on
2/22/2007) (Entered: 02/22/2007)
02/22/2007 176 NOTICE by Keith B. Alexander(its Director), George W. Bush, National
Security Agency, United States of America, United States Of America Notice of
Loding of Classified Declaration of Lt. Gen. Keith B. Alexander (Coppolino,
Anthony) (Filed on 2/22/2007) (Entered: 02/22/2007)
02/22/2007 177 STIPULATION AND ORDER TO STAY CASES AGAINST CINGULAR et
al., pending the final appellate ruling on this Court's 7/20/2006 ruling in Hepting
et al v AT&T Corp et al. Signed by Chief Judge Vaughn R Walker on 2/22/2007.
(cgk, COURT STAFF) (Filed on 2/22/2007) (Entered: 02/22/2007)
02/22/2007 178 ORDER re 166 Notice of Voluntary Dismissal filed by Electron Tubes, Inc.
(C06-6433). Plaintiff, by counsel, pursuant to Rule 41 (a)(1) of the Federal Rules
of Civil Procedure, hereby files this notice of dismissal without prejudice of
Defendants Verizon Communications, Cellco Partnership and the National
Security Agency. As there are no other active defendants in this case, this case is
hereby dismissed. Signed by Chief Judge Vaughn R Walker on 2/22/2007. (cgk,
02/26/2007 179 CLERK'S NOTICE Advising Counsel of Receipt of the Case Center for
Constitutional Rights, et al -v- Bush, et al from the Southern District of New
York. (rcs, COURT STAFF) (Filed on 2/26/2007) (Entered: 02/26/2007)
02/28/2007 180 NOTICE of Voluntary Dismissal of Comcast Telecommunications, Inc. by All
Plaintiffs (Attachments: # 1 Proposed Order)(Parrett, Vincent) (Filed on
- ER 416 -
2/28/2007) (Entered: 02/28/2007)
02/28/2007 181 NOTICE of Voluntary Dismissal of Transworld Network Corp. by All Plaintiffs
(Attachments: # 1 Proposed Order)(Parrett, Vincent) (Filed on 2/28/2007)
(Entered: 02/28/2007)
03/01/2007 182 CLERK'S NOTICE Advising Counsel of Receipt of the Case Robert Clayton, et
al -v- AT&T Communications, et al from the Western District of Missouri. (rcs,
03/02/2007 183 CLERK'S NOTICE Advising Counsel of Receipt of cases from the Eastern
District of Missouri and the District of Minnesota. (Attachments: #(1) U.S. -v-
Gaw, et al; #(2) Roche -v- AT&T Corp) (rcs, COURT STAFF) (Filed on
3/2/2007) (Entered: 03/02/2007)
03/05/2007 184 ORDER Granting 180 Notice of Dismissal of Comcast Telecommunications,
inc. filed by All Plaintiffs. Pursuant to FRCP 41(a)(1) defendant Comcast
Telecommunications, Inc is hereby dismissed without prejudice. Signed by Chief
Judge Vaughn R Walker on 3/5/2007. (cgk, COURT STAFF) (Filed on
3/5/2007) (Entered: 03/05/2007)
03/05/2007 185 ORDER Granting 181 Notice of Dismissal of Transworld Netowrk Corp. filed
by All Plaintiffs. Pursuant to FRCP 41(a)(1) Defendant Transworld Network
Corp is hereby dismissed without prejudice. Signed by Chief Judge Vaughn R
Walker on 3/5/2007. (cgk, COURT STAFF) (Filed on 3/5/2007) (Entered:
03/05/2007)
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00664-Hepting Excerpts of Record

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PUBLIC UNCLASSIFIED EXCERPTS OF RECORD

IN THE UNITED STATES COURT OF APPEALS

TASH HEPTING, et al., Plaintiffs - Appellees,

AT&T CORP., et al., Defendants, and

UNITED STATES OF AMERICA, Intervenor - Appellant.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

PAUL D. CLEMENT PETER D. KEISLER

GREGORY G. GARRE DOUGLAS N. LETTER

8 Amended Complaint, filed Feb. 22, 2006 . . . . . . . . . . . . . . . . . . . . . . . . 1-32

87 AT&T’s Request for Judicial Notice, filed Apr. 28, 2006

– Ex. J: Press Briefing by Attorney General Alberto Gonzales

124 United States’ Motion to Dismiss or, in the Alternative, for

– Att. 1: Declaration of John D. Negroponte, Director of

– Att. 2: Declaration of Lt. General Keith B. Alexander,

308 District Court Opinion, filed July 20, 2006 . . . . . . . . . . . . . . . . . . . 236-307

— Ninth Circuit Order Granting Permission to Appeal, filed

127 Notice of Attorney General’s Letter to Congress, filed Jan. 17,

– Att.: Letter from Attorney General Alberto Gonzales to

175 Notice of Filing of Public Declaration of Lt. General Keith B.

– Ex. 1: Declaration of Lt. General Keith B. Alexander,

– Ex. 2: Unclassified Paragraph from Classified Declaration . . . . . . . . 351

— Docket Entries in Hepting v. AT&T, No. 06-cv-672 (N.D. Cal.) . . . . 352-97

— Docket Entries in In re NSA Telecommunications Records

1 ELECTRONIC FRONTIER FOUNDATION

10 Attorneys for Plaintiffs

11 [Additional counsel appear on signature page.]

15 TASH HEPTING, GREGORY HICKS, ) No. C-06-0672-JCS

25 domestic spying program.

26 5. Defendants AT&T Corp. and AT&T Inc. maintain domestic telecommunications

2 communications made through their myriad telecommunications services.

10 government in its secret surveillance of millions of ordinary Americans.

15 JURISDICTION AND VENUE

19 §§1332 and 1367.

24 venue is proper in this judicial district pursuant to 28 U.S.C. §1391.

2 and/or agents of Defendants may be found in this district.

16 for calls to foreign countries including Korea, Japan and Spain.

17 15. Plaintiff Carolyn Jewel is an individual residing in Petaluma, California. Jewel, a

2 business in the State of New Jersey.

15 Corp., continue to have a significant business presence in California.

9 covering more than 73 million households.

24 day to nearly every continent and country.

1 AT&T is a significant provider of telecommunications and information

10 Foreign Intelligence Surveillance Court or any other court.

16 38. On information and belief, besides actually eavesdropping on specific conversations,

7 AT&T PROVIDES THE GOVERNMENT WITH DIRECT

23 AT&T Corp. facilities where they have been installed.

1 communications and information to the government after interception, capture, recording or

8 AT&T HAS PROVIDED AND CONTINUES TO PROVIDE THE

12 users thereof the ability to send or receive wire or electronic communications.

18 electronic storage of such communications.

8 54. Daytona is a database management technology originally developed and maintained

23 uncompressed, totaled more than 312 terabytes.

2 all such calls in about one minute.

8 including Plaintiffs and class members.

16 similarly situated persons defined as:

AMENDED COMPLAINT FOR DAMAGES, DECLARATORY AND INJUNCTIVE RELIEF –

10 §1801(b(1)(A), including without limitation anyone who knowingly engages in sabotage or

16 the results of discovery.

24 their identities and addresses may be ascertained from Defendants’ records.

25 73. Existence of Common Questions of Fact and Law: There is a well-defined

1 (a) Whether Defendants, acting as agents or instruments of the government, have

4 (b) Whether Defendants have subjected Nationwide Class members to electronic

5 surveillance, or have disclosed or used information obtained by electronic surveillance of the